Advanced Criminal Law CAN

TRU Law

FALL 2015DHorvath

Table of Contents

APPLYING THE CHARTER IN PRACTICE 3

OVERVIEW OF THE PROSECUTORIAL PROCESS 7

JUDICIAL INTERIM RELEASE 12

ASPECTS OF THE CRIMINAL TRIAL 19

SENTENCING 22

YOUTH CRIMINAL JUSTICE 32

THE ECONOMICS OF CRIMINAL DEFENCE 37

COMMON CRIMINAL OFFENCES: THREATS ASSAULTS AND HARASSMENT 38

IMPAIRED DRIVING 44

DEFENCES 50

1) ENTRAPMENT 502) NECESSITY 533) DURESS 55

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Applying the Charter in Practice

First interaction with the case with reading the RCC (Report to Crown Counsel). Charter breach affects the decisions to proceed with a prosecution.

Specific Rights:

Section 9 breach: the first question to ask: was there a detention or arrest. If there was then ask: was it arbitrary? (were there grounds for arrest or detention) - grounds for detention: duty of probable cause, reasonable suspicion tying the accused to the offence in question. Ask questions related to s. 9 analysis (see CAN)

Section 8: first question to ask: was there REP in the thing, which turns on ownership, presence, subjective and objective. If there is clearly an REP, warrantless search, was there exigent circumstances to justify it? Public safety concerns? Prime facie unreasonable but still may be reasonable: if other authority (ex. Breathalyzer). If warrant, was it given by authority and truly independent. What were the terms of the warrant. Reasonable probable grounds to believe a crime has been committed in the area to be searched? Was it mere suspicion or more? Scope of the warrant? Was the search carried out in a reasonable manner? (third part of Colins) - strip search, cannot do it automatically - when there is is additional reasonable probable grounds.

Section 10: Engaged upon detention or arrest, were these lawful? Was the accused advised of 10(b) rights? Advised of duty counsel, right to counsel. Obligation on the accused? diligent in essences of the right, if there is a waiver need to know their state of mind

Other Rights Commonly at issue: disclosure, translator, right to fair trial

R. v. Grant

Facts: Three police officers were patrolling a dangerous neighborhood in Toronto when they saw Grant, a young black male, fidgeting with his coat. One of the officers approached him and began asking him questions. As Grant continued behaving suspiciously, the other two officers also approached him and one of the officers asked him if he had anything on him that he shouldn’t. Grant replied that he had a bag of weed and a firearm with him. At this point the officers arrested and searched him. The accused alleged violations of his Charter rights under sections 8, 9, and 10(b).

Analysis: The grant test was applied and came to the conclusion that admission of the gun would not bring the administration of justice into disrepute

Ratio: The Grant Test. : The majority explains that the central question animating the section 24(2) inquiry is “whether a reasonable person, informed of all the relevant circumstances and values underlying the Charter could conclude that the admission of evidence would bring the administration of justice into disrepute?” Grant requires judges to pursue three lines of inquiry (Grant Test):

1) Consider the seriousness of the charter infringing state conduct;2) The impact of the breach on the Charter protected interests of the accused; and3) Society’s interest in the adjudication of the case on its merits

Holding: Admission of the gun, close call but overturning 5 of his charges non the less

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R. v. Stinchcombe, 1991

Facts: lawyer charged with breach of trust, theft and fraud. Secretary was a witness for defense, she was interviewed again by a police and a written statement was taken. Defence informed of the existence of the statement but not of its contents, requests to disclosure were refused.

Issues: Was the Crown under an obligation to disclose the contents of the defense?

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.

Ratio: 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.

Conclusion: There should be a new trial

R v. Oakes [1986] SCC – Reasonable Limits Test.

Ratio: When a court concludes that a law breaches a Charter right, the government has the burden of proving that the breach was within a reasonable limit, prescribed by law, and that it can be demonstrably justified in a free and democratic society. Oakes imposes a three step test:

1) Was the breach “prescribed by law”2) Does the offending law pursue a pressing and substantial objective?3) Is the law proportional? That is…

a. Is the law rationally connected to the pressing and substantial objective;b. Does the law minimally impair the right in question;c. Do the benefits of the law outweigh its deleterious effects?

Facts: David Edwin Oakes was caught with 10 vials of hashish oil which he claimed he had purchased for $150 for his own use. Oakes also had $619.45 on him in cash. Accordingly, he was charged with intended trafficking under s.4(2) of the Narcotic Control Act, despite Oakes’ protests that the vials were meant for pain relief and that the money he had was from a workers’ compensation cheque. Section 8 of the Act provided for a shift of onus onto the accused to prove that he was not in possession for the purpose of trafficking. Oakes made a constitutional challenge, claiming that the reverse onus created by the presumption of possession for purposes of trafficking violated the presumption of innocence guaranteed under section 11(d) of the Charter.

Issue and Holding: Does the reverse onus provision in the Narcotics Control Act violate the presumption to be “presumed innocent until proven guilty” under section 11(d) of the Charter? If so, is such a violation demonstrably justifiable in a free and democratic society? Section 8 of the Act does violate section 11(d) of the Charter and it cannot be saved under section 1 of the Charter.

Reasoning: Judge concludes that section 8 of the Act doesn’t satisfy the rational connection objective (step 3(a) of the Oakes Test); possession of a small quantity of a narcotic does not support the inference of trafficking. Therefore, the reverse onus provision is not rationally connected to the objective of the Act.

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Charter Remedies Available:

1)S. 1 – Striking Down Law

a. R. v. Oakes:

i. Test:

1. Is the object of legislation pressing and substantial?

2. Are means chosen reasonablea. Rationally connected to the

goal?>b. Minimal impairment?c. Benefit outweigh effects?

(proportionality)

Example: Carter

R. v. Morin

Facts: Acc’d charged with impaired driving, on Jan 9, 1988, on Feb 23 her counsel asked for the earliest possible trial date, got March 28, 1989, a 14.5 month delay, application under s. 11(b) was dismissed for s. 24(1) remedy. Convicted of over 80 charge. Court of appeal stayed the over 80 charge.

Analysis: Balancing factors to considering delay under s. 11: (1) length of delay (2) waiver of time periods (3) the reasons for the delay including:

(a) inherent time requirements of the case (b) actions of the accused,(c) actions of the Crown (d) limits on institutional resources and (e) other reasons for delay

(4) prejudice to the accused

Institutional delay after committal of trial range 6 to 8 months, the larger the prejudice the shorter the delay ought to be

Application: As the regular delay in the jurisdiction is about 10 months, given straining of resources and that no prejudice was raised 14.5 months is reasonable.

Ratio: S. 11(b) right to trial within reasonable time will be breached where there is unreasonable delay causing substantial prejudice to the acc’d. Remedy to unreasonable delay is a judicial stay.

Conclusion: delay not unreasonable

Carter v. Canada 2015 SCC 5Facts: In 1972, the Canadian government repealed the Criminal Code provision prohibiting suicide. However, 241(b) of the Criminal Code provided that everyone who aids or abets a person in committing suicide commits an indictable offence, and s. 14 stated that no person may consent to death being inflicted on them. The Supreme Court denied a right to assisted suicide in their 1993 ruling Rodriguez v British Columbia (AG),[3] upholding the constitutionality of the prohibitions based upon a thin evidentiary record.In April 2011, the British Columbia Civil Liberties Association (BCCLA) filed a lawsuit challenging both s. 14 and section 241(b) of Criminal Code (law that prohibits aiding a person to commit suicide), claiming they violated sections 7 (the right to "life, liberty, and security of the person) and 15(1) of the Canadian Charter of Rights and Freedoms (equality).[1]

The case was heard at the Supreme Court of British Columbia, who ruled in favour of the BCCLA in June 2012. The federal government appealed the ruling to the Court of Appeal for British Columbia, who overturned the ruling in a two-to-one decision in October 2013. The BCCLA then filed a leave to appeal to the Supreme Court of Canada.[1]

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2) S. 24(2) – The Exclusion of Evidencea. R. v. Grand, 2009 SCC 32

i. Where evidence was obtained in a manner that infringed a Charter right, “the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

1. To assess this the court considers three lines of inquiry a. Seriousness of the Charter- infringing conductb. Impact of breach on Charter-protected interests of Ac. Society’s interests in adjudication of case on its merits

3) S. 24(1) – An Adjournment

a. “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

i. Stinchcombe: Crown is required to disclose in a timely manner, all relevant evidence in its possession or control

4) S. 24(1) – A Judicial Stay a. R. v. Morin is an example of this, see above, - s. 11(b)

5) Section 24(1) – monetary damages:

Vancouver (City) v. Ward, [2010] 2 SCR 28

Facts: During a ceremony in Van, police got a tip that someone would thro a pie at a PM. W was mistakenly identified, chased down and handcuffed, arrested for breach of the peace and taken to the police. His car was subsequently impounded for the purpose of searching it once a search warrant had been obtained. Sued for damages for seizure and Charter violation

Ratio: Three stage test for damages:1) Establish a Charter right was breached2) Applicant must show why damages are just and appropriate remedy

a. Ask: would they fulfill one or more of the related function of compensation, vindication of right and/or deterrence of future breaches?

3) Crown may show “countervailing factors” that defeat the functional considerations supporting damages as appropriated (ie such as availability of other remedies capable of addressing the breach – exclusion, tort, declaration)

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Overview of the Prosecutorial Process

Types of Offenses:

There are three kinds: hybrid, summary and indictable

Hybrid: Crown decides whether to proceed summarily or by indictment, usually at the bail hearing. Based on the seriousness of the offence.

Indictable: depends, higher sentences and some are tried in the provincial court, the criminal code sets out if indictable sometimes.

Summary: there is a limit on summary prosecution of 6 months to process. A summary matter can proceed beyond 6 months if it is hybrid and the Crown proceeds as such.

Charging Documents:

Most cases including indictable and summary ones could begin by way of an “information”

Beginning by the preferring of an indictment: where a case is extremely serious, the case proceeds directly to trial.

o Prosecution can begin by way of indictment after having been proceeded summarily

Modes of Trial and Election

Elections: for matters charged by indictment the accused must elect their mode of trial. With certain exceptions there are three modes of trial:

1) Provincial Court Judge2) Supreme Court Judge only3) Supreme Court Judge and Jury

With superior court judges, one can proceed to preliminary hearing, preliminary hearing does not preclude going through the provincial court, can change anytime (baring exceptions)

Exceptions:

Summary convictions – including Hybrids – these say in Provincial Court

Absolute Jurisdiction offences set out in s. 553 these go to provincial court, even if the Crown proceeds by way of indictment

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Court of Criminal Jurisdictions: only a superior court judge can here cases under criminal jurisdictions, Supreme Court in BC

o Criminal Jurisdiction – S. 469 offences, o only such a court can grant bail on s. 469 offences (s. 522)

Trial by jury is compulsory unless otherwise enacted for (in legislation) including absolute jurisdiction offences. This also includes offences where the accused has a right to be tried by a judge. (s. 471)

o Exception - s. 473: With consent of acc’d and AG offences in s. 469 tried without a jury.

This is useful in cases where the acc’d had mental health issues and Air India case where there a lot of complex issues that would take A LONG TIME.

Territorial Jurisdiction: If no part of the offence took part n a province the court of the province ahs no jurisdiction. However where a crime took place in 2 provinces, where the AR took part has jurisdiction. However, the province can waive jurisdiction and allow the other province to prosecute. If the crime is outside of Canada itself there has to be a real and substantial connection to Canada to prosecute.

Jurisdiction in Time: Indictable Offences: No limit Summary Offences: 6 month after completion of the offence S. 11(g) of the Charter prohibits prosecutions for conduct not an offence at the time

o Exceptions: War crimes from World War 2.

Issuing Process (How acc’d brought to court):

Promise to Appear: after arrest a promise to appear can be given Summons : if no promise to appear a JP can send out a summons Warrant: JP can also issue a warrant to Bring person in Arrest without Warrant: At the scene for instance

Krieger v. The Law Society of Alberta (2002) 168 CCC

Facts: K was a crown prosecutor used his discretion not to disclose favorable blood evidence to the defence until the final test was done, knew it would help the defence. Matter was investigated and he was disciplined as an error in judgment. matter put to law society after 6 months K was disciplined, before Law society of Alberta could issue sanctions K sued to say it has no jurisdiction due PD- crown discretion.

Issues: Does the Law Society have the jurisdiction to review the prosecutor’s conduct after the AG has already reviewed the prosecutor’s conduct?

Analysis: The court decides on a separation of powers issue – mainly that the court should not interfere with prosecutorial discretion, if they do the the court becomes a supervising prosecutor and ceases to be an independent tribunal. However, the law society retains jurisdiction. Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for…”

Ratio: The courts should not interfere with prosecutorial discretion.

Conclusion: The Law Society retains jurisdiction. Trial decision respired, the rule of professional conduct was in pith and substance a matter of administration, clearly in provincial jurisdiction. 8

How to characterize plea deals: plea deals are a matter of discretion, can only review it if it an abuse of process but its withdrawal does not matter, that is in the crown’s discretion. Similar to a contract, it can be revoked before it is accepted formally before a judge, remember a judge has to sign of on it.

Scope of abuse of process under s. 7: 1) Conduct affecting fairness causing prejudice2) Conduct affects the integrity of the judicial process

a. It would take the clearest of cases, as it would mean a gross abuse of power but can get more remedies under s. 24(1)

R. v. Nixon, 2011 SCC

Facts: the acc’d got in a crash, killing a husband and wife, seriously injuring a young child. he accused was charged with seven offences. A plea resolution agreement was reached. Before the guilty plea was entered, the Assistant Deputy Minister (ADM) determined that the plea resolution agreement was not in the best interests of the administration of justice. The Crown withdrew the agreement.

Issues: did the trial judge err in concluding that the Crown”s repudiation of the plea agreement was an abuse of process in breach of the appellant’s rights under s. 7?

Analysis: The court could not draw line at the courtroom door because it destroys the purpose of prosecutorial discretion. Discretion was not spent with the decision to initiate the trial, the ADM’s decision falls within the real discretion because it is the decision as to whether a prosecution should be brought, continued or ceased. Prejudice to the accused's interests, although relevant, is not prejudice to the accused's fair trial interests or to the integrity of the justice system.

Ratio: Scope of procedural discretion and Abuse of Power test.

Abuse of Power Test: whether "compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency", or where the proceedings are "oppressive or vexatious" R .v . Jewitt.

Conclusion: Appeal dismissed, TJ applied incorrect test for abuse of process.

Stay of Proceedings Test ( R. v. Nixon):

A stay of proceedings will only be appropriate when: "(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the

conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice"

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General Process from Arrest:

1) Bring someone into custody: a. Test at Scene: person is a danger to the public, likely to commit offence,

unlikely to appear, destroy at the scenei. Process:

1. Acc’d brought to the police station2. Can be released at this point on recognisance (higher up

decides)3. If not released here, within 24 hours the acc’d has to appear

before a JPa. Note: This is the acc’d first appearance, the rendering of

the RCC, decision to proceed with prosecution happens within this 24-hour period

b. Note: this could be longer if in a rural area. If not sworn before the reasonable time the acc’d is released

4. Information is read to the accused, crown then has to decise whether it will seek the detention of the acc’d

5. Test for bail – 515(10)6. Have to show grounds for detention, presumption of innocence

stands 7. If detained acc’d cannot get another shot at bail

a. Exceptions: i. bail review

ii. consent of the Crowniii. New evidenceiv. At the beginning of trial

Pleas: where no guilty plea has been entered not trial date set, therefore adjournments for no counsel for the accused can go on for awhile. Guilty plea can be entered at a bail hearing but no not guilty plea can be entered yet prior to arraignment. For a not guilty plea schedule trial, book room and judge.

R. v. Hape, 2007 SCC 26

Facts: RCMP investigate H, a Canadian, in Turks and Caicos. They obtain authorization from local police who agree to RCMP investigation “under their authority”. RCMP conduct various searches of H’s premises, in presence of local police – some of the searches were warrantless, no warrants presented at trial. TJ holds Charter does not apply, H convicted of money laundering.

Issues: Does the Charter apply to investigations of Canada authorities?

Ratio: Exceptions to when the charter does not apply (1) if the host state consents (2) fair trial rights have been violated by the use of the evidence (3) where conduct of Canadian official violates international law.

Conclusion: Charter does not apply

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2) Released: a. Process:

i. Promise to appear is given to acc’d, ii. PO goes back to station to compose RCC.

iii. Acc’d invited back to the station for fingerprint.iv. RCC given to Crown Counselv. Crown counsel decided to charge or not

1. Test: a. Is there substantial likelihood of conviction?b. Is it in the public interest to proceed with the

prosecution?vi. If Crown decides to charge the PO swears to the truth of the RCC in

court house then JP sings the “information” (RCC now becomes the information, information is created). Prosecution begins.

Jurisdictional Issues: where accused is arrested again in a different location after having been released has to get over the hurdle of cause for detention in new jurisdiction. If released on recognizance on the second charge in new jurisdiction the acc’d failed to abide by the conditions of his bail mainly that he keep the peace. This is attached to every bail order. This was breached by the second charge.

S. 524 of the CC: detains the acc’d to appear before a judge in the first location to answer for the breach of bail

More complex situation: acc’d gets arrested a third time and released under a new information (info 3). He/she is then detained in breaching on the second information (info 2). This breach can be brought as a new information. However, this means the acc’d will have to answer for this as well as the release on the first information again for breach of bail.

o So if detained at one of the locations: detained until that specific trial is over, till sentencing hearing is done.

o Note: Crown can package the charges from multiple informations, agreed by Crowns in other jurisdiction proceeding in one jurisdiction.

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Judicial Interim Release

Bail: 1) process by which an accused person is compelled to appear and 2) means by which the accused’s good behaviour in the community pending trial is confirmed.

Where: S. 469 offences must be heard in superior court all others can be heard in provincial court even if acc’d elected to go the superior court. After hours can be held to takes place before a JP (don’t do it, they are not judges….wait till morning honey) via conference call.

S. 516: allows the crown to adjourn for 3 days.

Why Grant Bail?: an accused is presumed innocent until proven guilty. Bail is statutorily and constitutionally presumed S. 11(e) of the Charter and s. 487, 498 and 515. Crown has to rebut this presumption.

Release by police, without warrant, without being endorsed (not appeared before the court – s. 497:

o For offences mention in 496: indictable offence in s. 533, summary or indictable prosecution, or just by way of summary conviction

(1)(a) Release person from custody with the intention of compelling their appearance by way of summons or (b) issue appearance notice to the person and then release them.

Exceptions: detain to establish identity, secure r preserve evidence, prevent continuation or repetition of offence or ensure safety and security of witness or victim.

(2) not apply to offences in s. 503(3) – indictable offence to have committed in Canada in another province

Release by police with or without warrant, endorsed (appeared before court) – s. 498:

o How to release: Release with intent to compel appearance by way of summons Release on their promise to appear Release on recognizance without a surety less than $500 but without

deposit If not ordinarily reside within 200 km of the place in which the person is

in custody – entering into recognizance before the officer without sureties in an amount not exceeding $500 with deposit

o Exceptions (1.1): Necessary in the public interest that the person be detained because:

Establish ID Secure or preserve evidence Prevent repetition or continuation of offence Ensure safety and security of victim or witness (b) belief person will not attend court

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Police refer to this as RICE: Repetition, ID, Court, Evidence

Means to compel appearance: appearance notice:

Appearance notice: size of a ticket with date and time of court – through CC or Offence Act

Summons (court issues summons) – 498 and 497

Imposing Good Behaviour: undertakings in s. 499 (promise to appear with an undertaking). Conditions are limited in s. 499(2)(h): retain jurisdiction, do not communicate with victim or witness, passport, abstain from having a firearm, or directed to report, abstain from alcohol. This is a way to address the crown’s concerned under primary, secondary and tertiary.

Forms of Release

If not released by police: o S. 503(1) the acc’d must be brought before a justice within 24 hours of arrest (justice

and not a Justice of the Peace). Can do “telebail” through the JJP centre – this deals with the exceptions under s. 503(1)(b)

o Release by consent: once at court the acc’sd can be realest by consent of the Crown. o Used to be done at the counter with “Interim Consent Release Application” which

sets out the conditions and defence counsel signs for cliento Note: now a load of offences, s. 496 offences cannot be dealt with by a JP but by a

judge – these include: treason, mutiny, sedition etc.o For murder only supreme court judges can hear this – sole jurisdiction, speaks to

release by consent too..

o Undertakings: least restrictive form because they do not have any dollar amount attached, so less at stake for breaching. This, note above, can still include conditions. (s. 515(2)(a))

o Recognizances: more restrictive, there’s a monetary amount attached, can be without deposit or surety. – 515(2)(b) –(d), (e) is for out of province, 200 km. This is more restrictive also because of estreatment.

Estreatment: s. 762-773 – when there is a surety or money deposited and if conditions is not complied with, the Crown can bring proceedings to get the money, may make them pay part of all of it

Hard Process may be difficult for accused to put up cash or have some as a surety.

Surety: a person who stands to guarantee the accused’s attendance in court and good behaviour. In BC it is the latter that is considered

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o “Rendering”: the surety can be removed by this, s. 766 and 767 – they have to bring the person before the court and discharge the obligation and give the person back to the court. They can also render a warrant for that surety. Substitution is also an option

o Name Surety: they make sure the surety has assets

o Unnamed Surety: do not have to prove that the surety has any assets to pay in the event of breach

No Consent to release: 1) Bail or 2) Consent to be detained or not speak – can get an earlier trial date, but not if detained – cannot jump the que.

Bail Hearings - s. 515 or 522

o S. 522 – for s.496 offenses

o S. 517 – accused can apply for a publication ban of the proceedings which includes the name on victim or details but not on the charge of itself

o S. 518 - in 515 proceedings: o (a) justice may make such inquires, on oath or otherwise, of and concerning the

accused as he considers desirable

o (b) acc’d represented – no cross examination

o (c) what evidence prosecution can lead: (i) to prove that the accused has previously been convicted of a criminal

offense (ii) to prove that the accused has been charge with and is awaiting trial (iii) to prove that the accused has previously committed an offence under

s. 145 (iv) to show the circumstances of the alleged offence, particularly as they

related to the probability of conviction of the accused

o (d) the justice may take into consideration any relevant matters agreed on by the prosecutor and the accused or his counsel

o (e) the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case

Practical Considerations: the onus is on the crown to show cause for the detention of the accused.

o Reverse Onus Situations:: o s. 515(6) If indictable, not s. 496 and a list of offences o s. 522(2) s. 496 offences reverse onus applieso s. 145 Breach of bail offences – has a list of things that constitute breach of bailo Drug trafficking, fire arms offences,

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o Committing indictable offence while on bail fro another indictable offence

Venue: bail is not before the same court he case is heard by, it is dealt with at provincial court. Ethical Obligations: honesty of facts, do not mislead the court, “my client tells me” if something has not been confirmed yet, but representations made to court has to be checked.

Grounds for Detention:1. Primary Grounds: ensure acc’d attends court.

a. Have to have some basis to believe the accused will not attend court.b. Most Common Reasons:

i. Acc’d has a history of convictions for failing to appear in court, ii. The acc’d has missed a number of appearances,

iii. Acc’d does not reside in or have ties to the community where the offense was committed.

2. Secondary Grounds: Detain to ensure the acc’d does not commit further offences or interfere with the administration of justice

a. Most Common Reasons: i. Lengthy criminal record – similar kind, offences on bail, parole or

probationii. Consistent disregard of court orders

iii. Attempts to dissuade witnesses from testifying o See R. v. Morales – constitutionality of secondary ground, where an

accused keeps offending, bail could shake confidence in the administration of justice.

3. Tertiary Grounds: Detain to maintain public confidence in the administration of justicea. R. v. Hall: constitutionality considered – it used to be used as a fall back for when

secondary and primary grounds are not in play.

b. Factors (s. 515) – (St. Cloud): i. Apparent strength of the prosecution’s case: flexible use of evidence,

justice has the consider the quality of evidence, but must consider any evidence raised by the accused, evidence for defence also take into consideration of the apparent strength.

1. Assessed on submission of counsel2. Court must undertake analysis even if makes crown case very

strong

ii. Gravity of the offence 1. Assessed objectively2. Is the crime grave – minimum or maximum sentences

iii. The circumstances surrounding the commission of the offence:1. No exhaustive list 2. May include: violence, status of the vivacity whether offence,

gang/organize crime related and or degree of accused participation 3. St. Cloud:

a. The fact that the offence is a violent, heinous or hateful one,

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b. That it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or

c. That the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability).

d. If several people committed the offence, the extent to which the accused participated in it may be relevant.

e. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account.

iv. Liable for lengthy period of imprisonment:1. Assess subjectively but judges consider all circumstances2. Aggravating Factors: possible length of sentence, degree of

involvement, 3. Mitigating Factors: anything that may look at benefit of the accused

- Listed Circumstances are not exhaustive ( St. Cloud) : worded clearly – “all the circumstances, including,” clear legislative intent. The factors are simply the main factor, court articulates something’s to consider:

o the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) or

o the status of the victim and the impact on society of a crime committed against that person or o the fact that the trial of the accused will be held at a much later date

Meaning of “public” ( St. Cloud ): balancing must always consider the perspective of the public at (c), public refers to a reasonable member of the public - average member of the community but only when that community’s current mood is reasonable.” So not one who is prone to emotional reactions whose knowledge in the circumstances of a case is inaccurate or who disagree with society’s fundamental values.

For the defence it is all about the “bail plan” which should address the concerns the crown has. There are practical concerns: where is he going to live, do they have cash to put up, job, and suffering addiction

Bail Review: s. 520 for accused and s. 521 for the crown. o Neither a hearing de novo or an appeal on the record but a hybrid o New evidence can go before the court o Judge has discretion, but must show deference to decision belowo St. Cloud: subject to new evidence, reviewing judge is in n better

position than bail judge.o New evidence is admissible subject to Palmer criteria (St. Cloud)o Significant change in circumstances can help a lot in these reviews.

The purpose of the s. 521 hearing is to allow new evidence and to review a past decision. Incumbent upon the crown to show cause why the Order of the Provincial Court Judge should be vacated and another substituted for it. Onus on the applicant to show err in law. R. v. Wilson principles (R. v. Adiwal - Obiter):

1) Acc’d has onus to show why serious case has to be vacated, on Balance of probabilities.

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2) JR here broader than appeal, justice must exercise independent discretion. But due deference and due consideration of the previous decision must be given.

3) The hearing is not a trial de novo even where additional evidence is submit

4) Rules of evidence do not apply to interim judicial release hearings. Hearings conducted summarily and on short notice. Hearsay can be considered if it is reliable and trustworthy but parties can bring in evidence to contradict.

5) Justices can consider oral or written statements of crown counsel, representing the material particulars of the charged alleged against the accused.

6) Hearsay evidence by telephone can be considered.

7) Summary or synopsis of wiretap evidence can be considered, even if it will be excluded at trial.

St. Cloud: review of bail in s. 520 and s. 521 is not open ended – It can be used only when:(1) Where there is admissible new evidence; (2) Where the impugned decision contains an error of law; or(3) Where the decision is clearly inappropriate. In the last of these situations, a reviewing

judge cannot simply substitute his or her assessment of the evidence for that of the justice who rendered the impugned decision.

It is only if the justice gave excessive weight to one relevant factor or insufficient weight to another that the reviewing judge can intervene. The reviewing judge is not in a better position than the TJ to evaluate whether detention is necessary unless there is new evidence – or if TJ erred in law

Undoing a detention Order

There are 4 ways:1) At the end of a prelim or once the trial begins ask the trial judge to review it

(s. 523(2)(a))2) After 30 days in the case of a summary offence or 90 days on an indictable

matter if the trial has begun (s. 525)3) With the consent of the Crown, at any time, before a PC judge or before a SC

justice for s. 469 offences (s. 523(2)(c)) or4) By application of either party to SC under s. 520

SC Review of Detention (R. v. Aulak, 2003 BCSC): Nature of review is a “hydbrid between de novo hearing an an appeal” Court may consider record below but also new evidence Judge can’t simply substitute her decision for that of court below, there must be:

o Error of law or in principle oro Material change in circumstanes such that it would be unjust not to order release

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Standard of Proof and Evidence on Bail:

Standard of Proof: BoP, Burden: on the crown to show detention is necessary

o Reverse onus: Terrorism, espionage offences Not ordinarily a resident in Canada On trial for another offence (indictable offence, on bail for it)

Evidence that is admissible – 518(1)(e ): the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances in each case. So only have to satisfy the test: credible and trustworthy (no rules of evidence in essence)

Breaching Bail:

S. 524(1)(2) and (4): o Can issue a warranto Can arrest without a warranto Can be detained o There can be a finding under s. 524, it is on a person’s record BUT not considered

another charge, it can be brought up later (at sentencing for instance) S. 145(3)

o Separate criminal offence of breach of bail, arrest hearing under s. 524 and a new information is laid in this event

Example: R. v. Seward

There was 1 information for 2 count. S was detained don secondary grounds. The court considered the seriousness of the allegations and the strength of the Crown’s case as per the secondary ground in 515(10)(b).

Factors that supported detention here:

Previous crimes of the acc’d Seriousness of the case (assault, he threw a child) could be a substantial case Relevant facts of the victim (she was afraid he would hurt her), domestic assault situation

before and it was serious he served substantial time, not clear whether he committed the alleged assault during bail

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Aspects of the Criminal Trial

The Charging Document

Information v. Indictment: a prosecution by indictment usually begins with an information. But if it begins with by way of an information and the prosecution proceeds in SC, crown can “lay” or “prefer” an indictment after the preliminary hearing. Can begin with an indictment if there is a preliminary inquiry. If the charge says so or the crown so choses if the crime is serious enough to begin by indictment.

Joinder and Severance of Charges: an information can have many charges. Each count deals with a singe “transaction” (broadly construed). A trial is usually held on a single information or indictment but may be held on more than one if it is in the “interest of justice” (Clunas, SCC 1992).

S. 591(3): allows for severance of counts and/or accused where “the interest of justice so require”.

o Situations in which might seek severance (R. v. Last, 2009 SCC):

General Prejudice of the acc’d Factual nexus between the counts Intent to testify on one count or another Desire to avoid multiplicity of proceedings Use of similar fact evidence at trial Length of trial Likely prejudice arising from delay Antagonistic defences between co-accused.

Joinder and Severance of the accused:

General Rule: accused who allegedly commit offence should be tried together (R. v. Chow, SCC 2005)

Common Exception: o Young person o Co-accused evidence is essential, o Crown cannot compel either acc’d to testify, if one testifies

then that opens you up to cross examination by co-accused.

Content of the Charge: S. 581(3) mandates that there has to be sufficient detail of the circumstances of the alleged offence to give to the acc’d reasonable information with respect to the act or omission to be proved against him and to ID the transaction referred to, but otherwise the absence or insufficiency of details does not vitiate the count.

It does not need to contain: the name of the acc’d, how the person committed the offence.

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Need to be specific on: Time because have to give acc’d sufficient notice to answer back, to make faire notice, have to make it possible for the defence to ascertain what the charge is, but do not have to be super specific

Remedies for Defective Charge:

1) Allowing the Crown to amend (S. 601)2) Quashing the count (S. 601)3) If arising after trial begins, Crown permitted to amend only if it does not unduly

prejudice the accused.

Order of Trial:

1) Crown begins with opening statement

2) Crown evidence in chief a. Defence crossb. Voir dire: acc’d can testify in a VD, can admit to offence but does not necessarily

mean it is admitted to the trial. c. Defence can concede a number of facts.

3) Affidavit evidence

4) Rule in Brown and Dunn (HL 1893): a cross examiner cannot rely on evidence that is contradictory to the testimony of the witness without putting the evidence to the witness in order to allow them to attempt to justify the contradiction. This means that if a witness presented by the crown testifies to a different story that the defence wants to lead, it has to be put to said witness.

a. Example: I suggest to you that it was the gardener that killed the vic

5) Close of the Crown’s Casea. “Directed Verdict”: the defence can make such a motion if the Crown’s case has

no evidence, the test being: assuming all evidence presented is true, could the crown make out the case at hand?

6) Acc’d is not compellable – CEA (S. 3)a. However, a judge cannot comment on the fact that the acc’d did not testify except

in some cases a negative inference can be drawn such as facts that call out for explanation.

7) Crown’s case can be reopened if there is new evidence if the crown could have picked up but they didn’t

8) Defence can lay evidence – witnesses a. Crown can cross-examineb. Rebuttal evidence

9) Closing Submissions (defence first if D called evidence)

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Note: cannot ask leading question, meaning cannot ask open ended questions. However, if a witness is rendered a hostile witness (when a witness “forgets” on the stand), can ask such leading questions. Negligence can ensue if done incorrectly.

Mistrials A mistrial can be declared by a judge at anytime from pre-trail motions to before sentence is imposed (or if with jury, before jury renders verdict).

Basis for granting a mistrial:

Any act or omission that renders the trail unfair (R. v. Kahn) such as evidence that should not have been disclosed.

A serious error. The Judge was not acting impartially (bias)

R. v. W(D):

Facts: Sexual assault trial, jury charged and then recharged on credibility and reasonable doubt. Defence concerned that recharge left jury with impression that main issue was whether they believed complainant or accused.

Issue: Was the TJ’s charge to the jury in error and a mistrial was correct?

Analysis: issue for trier of fact is not whether they believe accused or complainant, issue is whether they don’t believe accused, considering evidence as a whole, there is reasonable doubt.

Ratio: The TJ need not believe the accused in order to acquit. The trial judge should instruct the jury that:

(1) If they believe the evidence of the accused, they must acquit;

(2) If they do not believe the testimony of the accused but are left in reasonable doubt by it, they must acquit; and

(3) Even if not left in doubt by the evidence of the accused, they still must ask themselves whether they are convinced beyond a reasonable doubt of the guilt of the accused on the balance of the evidence they do accept.”

Conclusion: Recharge of the jury by the TJ was in error.

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Sentencing

So what is sentencing: it is the process whereby an offender is sanctioned of this or her criminal behavior. this is an individualized process (ad infinitem). It is premised around the idea that the right sentence is made for the offended and the context. More of an art than a science.

Role of Precedent: informs the process but does not determine, precedence can be easy distinguished, because it is not one size fits in.

Role of CC: Mainly everything in sentencing is in the CC, all sentences are in the Code, can’t go outside of that. Not always noted by sections.

Purpose: s. 718: to contribute alone with crime prevention initiatives, to respect for the law and the maintenance of a just peaceful and safe society by imposing just sanctions. (does not apply to youths - have their own code for sentencing not CC)

Objectives: 718 -(a) denunciation (b) deterrence (specific and general —> specific deter the specific person from committing offence, general that deters general public) (c) separate offenders from society (d) assist rehabilitation (e) reparation for harm done to victims or the community and (f) to promote a sense of responsibility in offenders

1) Denunciation: it expresses the condemnation of society of the criminal act, need to send a msg that it is not ok. In practical terms it means generally dealt with by imposition of a jail term. If it is the ONLY objective then the odds are that they would go to jail. Little Jenny is a little shit and we do not tolerate this shit.

2) Deterrence - idea that a sentence that can have the effect of making either the offender or society at large refrain from committing crime. The offender or society refrains from committing the crime out of respect for/fear of the sanction that will be meted out in return. Issue of whether deterrence is an effective way to prevent crime, despite these issue the Parliament says it is one of the objectives sentencing. Generally deterrence will call for a more harsh sanction - jail is usually at play here.

3) Separation from Society: 718(c) usually brought in when dealing with violent offences particularly where the offender is a repeat offender. Objective always met by sentence, 718(c) provides this objective only invoked “where necessary”.

R. v. Mack case deals with this - he gets a year Example: 74 Club

4) Rehabilitation: perhaps the most important consideration when one consideration fundamental purpose of sentencing. because if a person is rehabilitated they stop them. However, this becomes

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less of a consideration the offender gets older and their record gets longer. Like in R. v. Mack

5) Sense of responsibility: the last objective is nebulous and speaks to the individualized nature of sentencing. What might promote sense of responsibility in one person might not be the other. Some would argue that sentencing as it stands right now might be a singularity ineffective tool for achieving this end.

6) Reparations Later - he comes back to it.

7) Principle of retribution: not in s. 718 (not codified it is in R. v. M. (C.A) para 79.

Other Principles

S. 718.01: Objectives on Offences against Children: “when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct”

S. 718.02: Against Peace Officer or other Justice Participant: “When a court imposes a sentence for an offence under subsection 270(1), s. 270.01 or 270.02 or para 423.1(1)(b), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.”

Fundamental Principle: s. 718.1 – Proportionality –the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other Sentencing Principles – 718.2:

718.2(a): aggravating and mitigating factors:

Aggravating factors are: 718.2 (a)(i) - (v)

(i) - hate crimes

(ii) - domestic abuse (generally doesn’t matter in court…sad but true) or (ii.1) abuse of minor.

(iii) - abused position of trust or authority. (iii.1–sig impact on victim – including health and financial situation

(iv) Committed on behalf of crim organization (Mastoph)

(v) evidence of terrorism

Aggravating Circumstances718.2(b) to 718(e):

(b) “parity principle”: sentence imposed should be similar to those imposed on similar offenders

(c) “totality principle”: for consecutive sentences should not be unduly harsh

(d) should not be deprived of liberty if there are alternative less restrictive sanction appropriate in the circumstances

(e) “Gladue Principle”: sanctions should be considered for all offenders, especially aboriginals – has to be consistent with harm done to victims or to the community

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Others – 255.1 – where means of MV evidence that concentration of alcohol in the blood of the offender at the time when the offence was committed exceeds 160 milligrams of alcohol in 100 millilitres of blood

Mitigating Factors – Common Law (not exhaustive):

1) Gap in record so…more than 6 months

2) “Youthfulness” - no defined term, could be 18 or 22, depends on the person

3) Good Character

4) Nature of participation in the offence

5) Offence was more one of stupidity than criminality

6) Being cooperative

7) Being remorseful a. Lack of remorse is not aggravating factor, remorse is an important question of

rehabilitation it is mitigating (R. v. Anderson)

b. “Remorse” requires an acceptance of responsibility if there is no acceptance of responsibility (R. v. Church of Scientology Toronto) Remorse if properly dismissed as a mitigating factor

8) Entering a Guilty Plea - in particular (early guilty plea) 24

a. Rationale: saving victim from having to testify, taking responsibility is significant (think sex cases for victims).

Gladue principle - s. 718.2(e): dictates that all sanctions other than imprisonment should be considered especially with aboriginal offenders. While it applies to all offenders, has particular significance vis a vis the over-representation of aboriginal offenders in the prison population.

Ipeelee - comes out post Gladue, saying we got Gladue all wrong. (case that judges have to engage with it - so person that says they are an abo person have to see if they are and not just dismiss it

Example is R. v. Mack

Denunciation and Deterrence Made Primary Consideration by Statute:

Impaired/over .08 causing death – because entirely preventable offence, weakest defence is a person alcoholic

Trafficking in controlled substance (particularly for profit driven ones) ID Theft Cases

Types of Sentences

1) Discharges – s. 730: these allow a person to say they have not been convicted. Discharges can be absolute or condition. They are not available with a minimum or any offence punishable for 14 years (s. 730(1)).

Note: if a person has past convictions it is hard to argue on the second factor. Need a guilty plea or guilty verdict.

2) Suspended Sentence – s. 731: if a discharge is not appropriate but neither is a greater punishment, the court can suspend the sentence.

Probation Orders: can be placed on an offender as part of a term of condition discharge s. 731(2), as part of a suspended sentence (s. 731(1)(a)), in addition to a fine (s. 731(1)(b)), can be at the conclusion of a CSO, is maximum three years.

In Force: s. 732(1)(a):probation orders come into force (a) on the date on which the order is made. (c) at the conclusion of a CSO. (b) on release from jail. Probation orders are stil

List on a spectrum:1) Absolute Discharge

s. 730 2) Conditional

Discharge - s. 7303) Suspended Sentence 4) Fines5) Conditional

Sentence of Imprisonment

6) Jail

Consider 2 Factors – Fallofield Test (R. v. Fallofield):

a) Is it in the best interest of the accused?b) Not Contrary to the public interest

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valid for subsequent sentence to period of incarceration that would make for a longer than 2 years jail term.

Mandatory Conditions – 732.1(2)

Optional Conditions – 732.1(3) 732.1(3)(h) sets out a catch all provision

Notes of probation:

R. v. Knott: probation serves as an effective and efficient alternative ot unnecessary jail

R. v. Shoker: probation is primarily rehabilitative or serving to protect the public. Therefore no matter what conditions they must not be punitive

Collection of Samples: this is allowed through s. 732.1(3)(c.1) and c. 2 allow for the collection of samples according to (9) and by implication (8), (10), (11) and (12). In prior cases could not do this, parliament has allowed for it. No programs in BC, despite this parliament set this out, it might be found unconstitutional

3) Fines: s. 734 it can be imposed in addition to a jail term. In consider the fine the court must consider the ability of the offender to pay.

4) Conditional Sentence of Imprisonment: s. 742.1 – term of jail served in the community – this is only where sentence is 2 years or less (significance is that it is only provincial jails). CSOs only occur if pre-conditions are met from s. 742.1:

(a) No endanger community and consistent with principles in 718 to 718.2

5) Jail a. Provincial: 2 years less a day

b. Federal Penitentiary: 2 years or more

c. Intermittent Sentence: can be served intermittently if the sentence is 90 days or less. This is usually done on weekends. Probation applies when not in jail.

d. Pre-Trial Detention Credit: 719(3) a judge determines the ratio and then deducts pre-sentence custody. prior to 2009 it was 2:1 not it is 1:1.5 (719(3.1)). Usually means person who gets detained serves more, the new cap of 1.5 per day helps close this gap but still exists (R. v. Summers + The Truth in Sentencing Act). This applies in “circumstances” that justify it.

i. Rationale:

1. Quantitative: Those in federal custody have parole available after 1/3 of their sentence served but is generally granted after 2/3(Prov is 2/3). So person in pre-trail detention serves longer term if no credit was applied. This offends the parity principle. It

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also punishes those disadvantaged as they are the ones who often cannot make bail.

2. Qualitative: difference between jail and the remand centre, remand centers can be overcrowded.

Concurrent or Consecutive Sentences:

Test: whether the acts constituting the offence were part of a linked series of acts within a single endeavor” is so then concurrent. (R v. GPW, BCAC at para 35) – subject to totality principle!

Exception: But some offences will generally merit consecutive sentences if part of the same endeavour.

o Example: s. 117.01 – Possession Contrary to Order

Excessive Sentence: A sentence will be clearly or manifestly excessive if it a substantial and marked departure from the sentences customarily imposed for similar offenders committing similar offences

Sentencing Process – s. 723

Carter Hearing: s. 724(3)(e) – if aggravating facts or others are disputed by the accused, the Crown must adduce evidence and prove them on BARD.

Notice of Increased Sentence due to prior Conviction for same offence: in this situation notice must be provided by the crown prior to plea being entered (s. 727(1).

Example: 0.08 charges, goes up after each time.

Gladue Report (s. 721) otherwise known as a pre-sentencing report or a psychiatric/psychological report must have offender’s age, maturity, character, attitude and willingness to make amends, history of any alt measures used to deal with offender with offender’s response to measures. May be prepared for sentencing hearing, not necessary. (probation officer does it)

Victim Impact statement: s. 722 – sentencing may involve reading and considering the victim impact statement(s)

Offender’s Statement: s. 725 - Prior to passing sentence the court must inquire if the offender wishes to say anything, the offender can say anything (there is always right to reply)

Ancillary orders (ordered by a judge): Provide DNA sample to national databank Firearm prohibition under s .109 or s. 110 Forfeiture of firearm under s, 491 (can be subject matter of the offence even if not used

in it, if for instance not stored properly) Diving prohibition

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Victim of Crime Surcharge: in particular - 30% of any fine or 100 for summary or 200 for indictable (a judge used to be able to waive this but now it is mandatory – constitutionality?)

“Jump” or “Step” principle: generally if an offender is sentenced for offence x their next sentence for same offence will be more severe. However, it has been recognized that a step up or jump up should be gradual rather than a huge leap (R. v. Frigault 2012)

Reparations: provide reparations where there is an economic loss suffered by either victims or the community writ large:

1. restitution order or either by “stand alone” s. 738 or as a term of probation order 732.1(3.1)a or

2. community work service hours 732.1 3(f) or conditional sentence 742.3(2)(d)

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R. v. Summers, 2014 SCC 26

Facts: S violently shook infant daughter resulting in her death, pleaded guilty to manslaughter. Was in custody for 10.5 months from his arrest. Agreed sentence between 8 and 10 years is appropriate. Sentencing decision gave him 1.5

Issues: Is ineligibility for early release and parole while on remand a “circumstance” that can justify granting enhanced credit for pre-sentence custody under s. 719(3.1) of the Criminal Code?

Analysis: Interpretation of s. 719(3.1) no observed language limiting circumstances indicating it is not limited by parliament, they did not intend to limit it. It foes beyond circumstances that are particular to the offender. (3.1) is also structures as an exception. Intention of the parliament also indicates that the new amendment did not limit the circumstances that can be used for the enhanced credit. To conclude other than loss of eligibility for early release and parole does not justify a circumstance for enhanced credit under s. 719(3.1) would be necessary for the court to read limiting language into 719(3.1) that is not there. Since the cap is cut off it means simply that the upper limit will be reached more easily.

Ratio: The Truth in Sentencing Act caps pre-sentence credit but it does not limit the circumstances that justify this credit.

Conclusion: Appeal dismissed, appropriate use of 1.5 days.

R. v. Safarzadeh-Markhali, 2014 ONCA

Facts: SM detained prior to trial on drug and weapon charges, spends roughly 20 months on remand. S, 719(3.1) mandated that he not receive credit for this period but TJ strikes it down on the basis of s. 7, grants 30 month credit.

Court: s. 719(3.1) violates s. 7 because it amounts to a deprivation of liberty not in accordance with PFJ:

one of gov’s objectives for the new 719 provisions was to prevent accused from ‘gaming system’ or prolonging pre-trial custody to increase credit.

“[T]he principle of proportionality prevents Parliament from making sentencing contingent on factors unrelated to the determination of a fit sentence. In this sense, the principle of proportionality is closely associated with the established principle that a law violates, life, liberty, or security of the person cannot be arbitrary” (para 85)

The court here articulated that an interpretation of the provision that does not account for the loss of eligibility for early release and parole while in pre-sentence custody is incompatible with the partiy principle. Those that do not receive bail would effectively get longer sentences if no credit was received. Karakatsanis in Summer stated that , “a rule that creates structural differences in sentences, based on criteria irrelevant to sentencing, is inconsistent with the principle of parity.” She also endorsed the court’s treatment with the proportionality principle.

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Criminalization of joining ISIS R. v. Hersi, Ontario Superior Court: 10 years for:

1) Counseling an offence that was not committed (s. 464)a. Trying to persuade UC officer to join him in traveling to Somalia to partake in al

Shabbab.2) Attempting to participate in a terrorist activity (s. 83.18)

New provisions added to the Code, 2013:

Leaving Canada to participate in activity of terrorist group83.181 Everyone who leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada, for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an offence under subsection 83.18(1) is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

2013, c. 9, s. 6.

Leaving Canada to facilitate terrorist activity83.191 Everyone who leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada, for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an offence under subsection 83.19(1) is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

2013, c. 9, s. 7.

R. v. Khawaja, SCC 2014

Facts: K a 25 y/o living in Ottawa traveled to London and attended training camps in Pakistan. Conspired to bomb London office tower, build a prototype remote bomb detonator device, agreed to build several more. Police found large amounts of money and various weapons in Ottawa home. Convicted at trial of various terrorism offences, and in addition to 5 years pretrial custody, receives a global sentence of a further 10, with parole eligibility at 5 years.

CA: increases sentence to life holding that TJ erred in failing to recognize that “the import of rehabilitation as a mitigating circumstance is significantly reduced” in terrorism cases.

Analysis: Despite upholding McLachling states that: “I cannot accept the broad proposition that “the import of rehabilitation as a mitigating circumstance is significantly reduced in [the] context [of terrorism] given the unique nature of the crime . . . and the grave and far-reaching threat that it poses to the foundations of our democratic society”  (C.A., at para. 201).   The terrorism provisions catch a very wide variety of conduct, suggesting that the weight to be given to rehabilitation in a given case is best left to the reasoned discretion of trial judges on a case-by-case basis. This does not, however, negate the fact that on the evidence in this case, the absence of evidence on rehabilitation prospects justified a stiffer sentence than otherwise might have been appropriate.” 

Conclusion: Upholds dispo

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Section 12 – The Right to be Free From “Cruel and Unusual Treatment or Punishment”

R. v. Smith (SCC 1987)– Leading Case

Facts: S convicted of importing a very small amount of marijuana into Canada. S. 5(2) of the Narcotics Control Act Carried mandatory 7 jail sentence for importing.

Issue: Violation of s. 12

Analysis: Violation and not saved by s. 1 here.

McIntyre’s Dissent – A different Test:No Minimum sentence where:

punishment cruel and unusual if it is: Character or duration as to outrage the public: of such character or duration as to

outrage the public conscience or be degrading to human dignity” Excessive: “goes beyond what is necessary for the achievement of a valid social aim Arbitrary: arbitrarily imposed [i.e., not applied on a rational basis on ascertainable

standards]

Ratio: When mandatory minimum apply when minimums are not grossly disproportionate.

Conclusion: Violation of s. 12, not saved by s. 1

R. v. Ferguson

Facts: RCMP officer has altercation with detainee in cells at police station, he shot twice and killed him. Charged with 2nd degree murder, but convicted of manslaughter. Jury finds no intent to kill or cause BH that he knew was likely to cause death. Code carries mandatory minimum 4 years for manslaughter with firearm. Trial judge found this ‘cruel and unusual’ under s. 12, granted “constitutional exemption”, imposed 2 year conditional sentence

Issue: S. 12 violation?

Analysis:

1) No Basis for the finding of violation of S. 12 here;a. Only issues for TJ was whether the disposition should be more than 4 years or whether

on these facts, 4 year mandatory violated s. 12. b. TJ needed to sentence on basis of facts consistent with Jury’s verdict that:

i. Self-defence didn’t applyii. No intent for murder

2) A “ constitutional exemption” is no an appropriate remedy for a s. 12 violationa. If the law imposing a minimum sentence is found to be uncosnitutional on the facts of a

particular case, it should be struck downb. Arguments in favour of constitutional exemptions are outweighed by “counter-

considerations” 1) the jurisprudence;  (2) the need to avoid intruding on the role of Parliament;  (3) the remedial scheme of the Charter   ; and  (4) the impact of granting constitutional exemptions in mandatory sentence cases on the values underlying the rule of law.

Ratio: ID problem with mandatory minimum jurisprudence - 31

Conditional Sentencing

Youth Criminal Justice

YOA was replaced with the YCJA due to a high incarceration rate (2x the US) despite the fact that youth crime and the murder rate among youths was much lower than the US. Main differences:

R. v. Proulx (SCC 2000)

Facts: 18 at time. Was drunk driving. Hit a car. Injured and killed occupants. Trial – 18 months. CA – 18 month conditional sentence

Issue: When is it appropriate for a conditional sentence to be imposed?

Analysis: it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is a sentence of imprisonment. Should generally include punitive conditions that are restrictive of the offender’s liberty. Restorative justice seeks to remedy the adverse effects of crime in a manner that addresses the needs of all parties involved.

Ratio: Criteria that a court must consider before deciding to impose a conditional sentence:1. The offender must be convicted of an offence that is not punishable by a minimum term of

imprisonment.

2. The court must impose a term of imprisonment of less then two years.

3. The safety of the community would not endangered by the offender serving the sentence in the community; an

4. A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss.718 to 718.2.

a. Factors that appear then restorative justice is important – then conditional sentence appropriate.

i. Offender’s prospects of rehabilitation.1. Including: whether the offender has proposed a particular plan

of rehabilitationii. Availability of appropriate community service and treatment

programs.iii. Whether the offender has acknowledges their wrongdoing and

express remorse.iv. Victim’s wishes as revealed in victim impact statement.

Conclusion: Where combination of both punitive and restorative objectives may be achieved a conditional sentence will likely be more appropriate then incarceration

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Number of young people charged dropped Continued trend towards less custody sentences

o However, did not bring down rate of remand which is still high

YCJA: Youth Criminal Justice Act

Preamble: Most serious intervention for the most serious crimes

S. 3 – “Declaration of Principle”:

o (a) Youth Criminal system intended to protect the public through Proportionality: seriousness of offences v. degree of responsibility of the

young person Promote rehabilitation Address the circumstances underlying their offending behavior

o (b) Principle of diminished moral blameworthiness or culpability, emphasize:

o (i) rehabilitation and reintegration o (ii) fair and proportionate accountability that is consistent with

dependency of young person and level of maturity o (iii) procedural protection, treat them fairly, rights protected,

privacyo (iv) timely intervention that reinforces the link between the

offending behavior and its consequences, ando (v) promptness and speed

o (c) Limits of fair and proportionate accountability, measures should:o Reinforce respect for societal valueso Encourage to repair harm done to victims and the communityo Be meaningful for the individual young persono Respect gender, ethnic, cultural and linguistic differences and

respond to the needs of aboriginal young persons

o (d) Special considerationso Young persons have right to be heard in the course of and

participate in the process that lead to decisions that affect them. Not prosecution

o Treated with courtesy, compassion, respect for their dignity and privacy and suffer minimum degree of inconvenience

o Provide young person with info about proceeding and given opportunity to participate and be heard

o Parents should be informed of measures or proceedings

Definition of “Young Person”: (S. 2) - twelve years old or older, but less than eighteen years old or committed an offence while he or she was a young person or who is found guilty of an offence under this Act.

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Option Upon Arrest – Police Warning (s. 6(1)): consider whether it would be sufficient to take no further action, warn the young person, refer the young person to a program or agency in the community

Extra judicial measures: (s. 10) young person cannot be adequately be dealt with by a warning, caution or referral (seen in s. 6,7,8) + must accept responsibility of the act or omission fo the offence and consent to the measures.

Conferences: (s. 19): (1) A youth justice court judge, the provincial director, a police officer, a justice of the

peace, a prosecutor or a youth worker may convene or cause to be convened a conference for the purpose of making a decision required to be made under this Act.

Mandate of a conference

(2) The mandate of a conference may be, among other things, to give advice on appropriate extrajudicial measures, conditions for judicial interim release, sentences, including the review of sentences, and reintegration plans.

Youth Bail (s. 29(1)):

1) Apply both s. 29(1) of YCJA and s. 515(10) of CC2) Additional conditions in s. 29(1) not in 515:

a. First Condition: that it is a serious offence (indictable for more than 5 years) if it is not you can still get them detained if: A history or pattern (pattern may be as little as two)

b. Second Condition: if they are detainable under b.c. Third Condition: no combination of other conditions would be appropriate

Other alternative to detention – S. 31: arrested, can be placed in care of a responsible person instead of being detain if youth court satisfied that:

1) Youth would be otherwise detained as a result of s. 515 of CC2) Person is willing + able to take care of and exercise control over the young person and3) Young person consents

Availability of a reasonable person: (2) Youth court inquires into availability if above satisfied.

It contemplates a closer level of supervision than is expected of a surety and imposes a duty to take care of the young person. This may satisfy the public confidence concerns under the tertiary grounds in some cases. This is done through a written undertaking.

Issue: poor families would suffer disproportionately due to family situation

Additional Trial Protections

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Section 25 – Right to Counsel: young person has the right to retain and instruct counsel without delay and to exercise that right personally at any stage of proceedings against him/her. This includes any situation when there is a consideration of whether to use extrajudicial sanction to deal with the young person.

Also affirmed in R. v. Sinclair – specifically right to counsel during interrogation.

S. 25(8) if the judge/justice/court notices that the interests of the child are at odds with that of the parent or that it would be in the best interest of the child, the court can ensure young person is represented by counsel independent of the parent.

o Note: there is more protection of the child than an adult would receive

S. 25(4) – gives the court the power to direct the AG to appoint counsel. In the old act this merely pointed young person to counsel if no legal aid was available, now it takes public funds out to do so. But he/she not entitled IF peace bond and extrajudicial sanction is sought at first appearance, only at first appearance.

Section 110 – Privacy: publication ban, cannot identify young person, name or any other info that would ID the kid.

Limits:

(a) No ban if sentenced as an adult (b) No ban, if court orders a lifting of the ban under s, 75(2) (c) Publication made in the course of admin of justice, if not the purpose to make

info known in the community

Section 146(1) – Admissibility of Statements: other law on admissibility of statements by acc’d persons applies with additional requirements set out in remainder of section.

So under s. 146(2) – no statement admissible, unless:

1. Statement must be voluntary 2. Explained in appropriate language prior to the statement being made (see all the subsections

for what is entailed)1. Young person has no obligation to make a statement, 2. Statement made may be used as evidence3. Has right to counsel 4. Any statement has to be made in presence of counsel

3. Prior to statement young person was given opportunity to consult1. Counsel2. Parent (or relative etc)

4. If being consulted, reasonable opportunity to make the statement has been made.

Spontaneous Statements -146(3): above does not apply to spontaneous statements

Waiver - 146(4): Waiver by young person, waiver must be recorder (video or audio) or in writing signed, containing have informed consent. Despite this (5) allows court to make this determination where above not present.

Youth Sentencing

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Purpose – S. 38: to hold young person accountable for an offence through the imposition of: (1) just sanctions that have meaningful consequences for the YP and(2) promote his/her rehabilitation and reintegration into society (protection of

public)

Principles – S. 38(2):

1. Not be greater than under adult sentencing2. Similar imposed in the region on similar YP guilty of same offence, similar circ. 3. Proportionate between seriousness and responsibility a. Least restrictive to achieve purpose of sentencing hereb. Most likely rehabilitate YPc. Promote sense of responsibility 4. Gladue – particular attention to abo circumstances5. Objectives: deter and denounce

Committal to Custody – S. 39(1): cannot impose custodial sentence when:1. YP committed violent offences 2. YP failed to comply with non-custodial sentences3. YP committed indictable offence for which adult would be liable to imprisonment

for 2+ years.4. YP Exceptional Offence, aggravating circ, would mean custodial sentence would

go against purpose. 5. (2) no other alternative court CAN impose one.

Youth Sentences S. 42:

Menu (2):o Custodial sentences of up to 3 years, 2/3 with all

custodial, and 1/3 on community supervision

o Exception - Murder: 1st degree = 10 years, 6 i/c; 2nd

degree = 7 years, with no more than 4 i/c) (s. 42(2)(q)) Maximum

o Unique:

Deferred custody and supervision order

(42(2)(p): Can only be up to six months and use to be for anything other than a serious offence or one designated as such. Since then, they also took off any offence that causes or attempts to cause serious bodily harm and it is consistent with the purpose and principles set out in s. 38 and s. 39

Intensive rehabilitative custody and supervision order (s. 42(2)(r)) must not exceed 2 years. or offence in adult sentencing is of imprisonment for life.

Adult Sentencing under YCJA

S. 42(2) – Sentenceso (a) Reprimand the young

person o (b)Absolute dischargeo (c) Conditional dischargeo (d) Fine (max $1000)o (e) Pay for damage of property o (f) Return propertyo (g) Pay restitution oro (h) Resitutional in Personal

serviceso (i) Community serviceo (j) Mandatory prohibition ordero (k) Probation not exceeding 2

yearso (l) Intensive support and

supervision program o (m) Non-residential program

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When available: only available for most serious offences only imposed against YP’s 14 or older at time of offence decision about whether to impose an adult sentence made after conviction Crown must provide notice before trial if Crown may seek A.S., YP has right to jury trial (where jeopardy warrants) Impose if court is satisfied that S. 72(1)t:

o (a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and

o (b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behavior.

Sentence for a youth who commits murder who is sentenced as an adult under YCJA/Code (s. 745.1 of

CC): mandatory life

parole ineligibility:

o between 5 and 7 years for YP’s under 16 at time of offence

o 7 years for YPs 16 or 17 for second degree

o 10 years for YPs 16 or 17 for first degree.

Maximum youth sentence available under YCJA is:

7 years for second degree murder (4 in custody, 3 in community under supervision)

10 years for first degree murder (6 in custody, 4 in community under supervision)

3 years for other serious offences (2 i/c, 1 on out)

R. v. D.B., SCC 2008

Facts: 17 y/o got into fight with another youth; knocked him to ground, punched him and fled; victim dies shortly afterwards. Acc’d pleads guilty to manslaughter. Crown sought to apply presumptive offence provisions in old s. 72(2) and 110(2), youth argues they violate s. 7 of the Charter. TJ agrees imposes a 3 year sentence.

Issue: whether s. 72(2) and 110(2) violate s. 7? Yes – see ratio for caveat. Analysis: both ss. 72(2) and 110(2) violate s. 7 because it is a principle of fundamental justice that YPs should have the “benefit of the presumption of diminished moral blameworthiness” – and the R.O. deprives them of this

Ratio: Adult sentences can be imposed in appropriate, serious cases, adult sentences can be imposed if Crown justifies it and not BARD and meaningful consequences. Publication can be justified if crown justifies.

Importance: after the case amendments remove concept of “presumptive offence” from YCJA for purpose of adult disposition and ban, crown must justify in all cases.

Serious Violent Offence: same definition of serious bodily harm should apply to these, so a serious violent offence is any hurt or injury, there physical or psychological, that interferes in a substantial way wit the physical or psychological integrity, health or well being of the complainant (R. v. K(C.C) 2005). In YCJA also at s. 2 includes:

(a) section 231 or 235 (first degree murder or second degree murder); (b) section 239 (attempt to commit murder); (c) section 232, 234 or 236 (manslaughter); or (d) section 273 (aggravated sexual assault).

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The Economics of Criminal Defence

Starting Point: What court is the appearance in?

1) The kind of charge: Administrative, summary, indictable or major. Look at the list in the back of the book.

2) Multiple information or multiple offender?

3) Things to Charge for:

a. Visiting clients in custody

b. Bail in Provincial Court

c. Bail in Supreme Court

d. Contesting Fitness Hearing

e. Non-Trial Resolutions:i. When resolved without preliminary hearing or trial

1. Application to withdraw a guilty plea2. Breach of CSO3. Complete stay of proceedings4. Consent committal 5. Drug court6. Extradition order7. Failing to appear or change of lawyer8. Guilty plea9. No Charge sworn because of representations by counsel 10. No Evidence called by Crown– resulting in dismissal of charged11. Peace bond12. Represented diversion13. Varying the terms of a sentence, probation order or peace bond.

f. Multiple Information resolution (Per additional info)

g. Sentencing

h. Preliminary Hearing (first 2 half day)

i. Preliminary Hearing (subsequent half days)

j. Trial (first two half days)i. There are specific rules for specific services within trial

k. Trial (subsequent half days)

l. Mental Health reviewi. Different for different types of hearings

m. Travel (per half day)

*Note: Remember Hourly Rate and Tarrif booklet

Econ Models for Crim Practice:

1) A particle focused on Provincial Court, non-“major” files (when starting out) - everything but the 469 offences

2) Economic Model 2: a practice involving both private bar and legal aid

3) A practice consisting largely of “CCM” files or Supreme Court trials

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Common Criminal Offences: Threats Assaults and Harassment

Assault

Elements:

AR: (a) no consent + applies force to non-

consenting person (Direct or indirect) (b) attempts/threatens to apply force to

another person + act or gesture + causes person to believe this + reasonable grounds to believe has ability to effect purpose

(c) wearing/carrying openly of weapon/other intimidation + accost/impede another

MR: intent to threaten

R. v. Byrne 1968 BCCA Words alone cannot constitute assault

Uttering Threats – Section 264.1(1):

AR: conveying or cause any person to receive a threat to cause death or bodily harm to any person

MR: intention that words used intimidate/instill fear or be taken seriously (R.v Clement)

Assessed: objectively.

Threat:R. v. Clemente: “…a declaration of hostile determination or of loss, pain, punishment, or damage to be inflicted in retribution for or conditionally upon some course; a menace.” R. v. McCraw: “…a tool of intimidation which is designed to instill a sense of fear in its recipient.”

Note: No requirement that the intended victim be aware of the threat (Clement) or that he/she was intimidated by it. Can be conditional. Do not have to prove that the acc;d intended to carry out the threat (R. v. Nabis SCC 1074) “…[to be guilty of uttering threats] it does not matter whether or not he intended to carry out his threat […], or that he acted for any specific purpose. His motives are not relevant […]. Whether the threat raised the possibility of imminent or remote danger is equally of no consequence.”

Physical Harm: R. v. McCraw states the term “bodily harm” is broad enough to include psychological harm.

Hiscoz BCCA 2002: the threat has to be taken seriously.

S. 264.1(1)Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

(a) to cause death or bodily harm to any person;

(b) to burn, destroy or damage real or personal property; or

(c) to kill, poison or injure an animal or bird that is the property of any person.

S. 265 of the Criminal Code: A person commits assault when:

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

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Criminal Harassment, s. 264:

AR: Repeatedly communicating w/ other person (or anyone known to them) + cause them to be harassed or reasonably fear for their safety or safety of others (in all the circumstances) + no lawful authority

MR: knew that conduct caused the complaint to be harassed or that he was aware of such risk and was reckless or willfully blind as to whether or not the person was harassed.

“Harassed” not defined in code. CL Definitions:

feeling of being “tormented, troubled, worried continually and chronically, being plagued, bedeviled and badgered.” (i.e., more than being annoyed)

“…bothering someone with requests, solicitations, incitements” (i.e., bothering because of repetition) French

Restraining Order: S. 810 Recognizance: Person agrees to enter into a recognizance and crown can go an lay the information, it would say special language grounds to fear that person will harm him/her.

Test: reasonable grounds to fear that going to cause harm.

Possession of property obtained by crime s. 354 - hybrid offence

MR: knowledge or wilful blindness to form possession? recklessness will not suffice - Vunokurov

There is another set of offences for stolen mail 358

AR: lacking that not obtained as a result of a fraud - not stolen - real case R. v. Epp

264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of(a) repeatedly following from place to place the other person or anyone known to them;(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or(d) engaging in threatening conduct directed at the other person or any member of their family.

810. (1) An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property.

(3) The justice or the summary conviction court before which the parties appear may, if satisfied by the evidence adduced that the person on whose behalf the information was laid has reasonable grounds for his or her fears,

(a) order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for any period that does not exceed twelve months, and comply with such other reasonable conditions prescribed in the recognizance, including the conditions set out in subsections (3.1) and (3.2), as the court considers desirable for securing the good conduct of the defendant; or

(b) commit the defendant to prison for a term not exceeding twelve months if he or she fails or refuses to enter into the recognizance.

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Possession

Recognizance in context of counter-terrorism:

810.01 (1) A person who fears on reasonable grounds that another person will commit an offence under section 423.1, a criminal organization offence or a terrorism offence may, with the consent of the Attorney General, lay an information before a provincial court judge.

Appearances(2) A provincial court judge who receives an information under subsection (1) may cause the parties to appear before a provincial court judge.

Adjudication(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for a period of not more than 12 months.

Duration extended(3.1) However, if the provincial court judge is also satisfied that the defendant was convicted previously of an offence referred to in subsection (1), the judge may order that the defendant enter into the recognizance for a period of not more than two years.

Refusal to enter into recognizance(4) The provincial court judge may commit the defendant to prison for a term not exceeding twelve months if the defendant fails or refuses to enter into the recognizance.

83.3 Recognizance with conditions:

83.3 (1) The Attorney General’s consent is required before a peace officer may lay an information under subsection (2).

Terrorist activity(2) Subject to subsection (1), a peace officer may lay an information before a provincial court judge if the peace officer

(a) believes on reasonable grounds that a terrorist activity will be carried out; and(b) suspects on reasonable grounds that the imposition of a recognizance with conditions on a person, or the arrest of a person, is necessary to prevent the carrying out of the

terrorist activity.

Appearance(3) The judge who receives the information may cause the person to appear before any provincial court judge. Arrest without warrant(4) Despite subsections (2) and (3), a peace officer may arrest a person without a warrant and cause the person to be detained in custody, in order to bring them before a provincial court judge in accordance with subsection (6), if

(a) either(i) the grounds for laying an information referred to in paragraphs (2)(a) and (b) exist but, by reason of exigent circumstances, it would be impracticable to lay an information

under subsection (2), or(ii) an information has been laid under subsection (2) and a summons has been issued; and(b) the peace officer suspects on reasonable grounds that the detention of the person in custody is necessary in order to prevent a terrorist activity.

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Possession of Property Obtained by Crime:

AR: Possession of property or thing or any proceeds of any property + was obtained by or derived directly from (a) or (b) above.

MR: Knowingly

Controlled Drugs and Substances Act“Possession of substance”:

4. (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III.

“Possession” S. 4(3) of the Act:

(a) a person has anything in possession when he has it in his personal possession or knowingly

i. has it in the actual possession or custody of another person, or

ii. has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

354. (1) Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from

(a) the commission in Canada of an offence punishable by indictment; or

(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.

358. For the purposes of sections 342 and 354 and paragraph 356(1)(b), the offence of having in possession is complete when a person has, alone or jointly with another person, possession of or control over anything mentioned in those sections or when he aids in concealing or disposing of it, as the case may be.

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AR: possession under s.4(3) - depends on the form of possession

MR: Substance + compound similar in structure to one of the schedules - substantially similar.

S. 4(3) sets out the types of possession

S. 4(3)(a) in personal possession or knowingly (i) has it in the actual possession or custody of another person or (ii) has it in a place whether or not that place belongs to or is occupied by him for use or benefit of himself or of another person

R. v. Hess: physical possession requires proof of (1) knowledge (2) control and (3) manual handling

Constructive possession: Know its in a place or in possession or custody of another. Have to have some measure of control. (R. v. Smith)

Joint Possession: s. 4(3)(b) “where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them”

Must: knowledge of the thing, the other person will have physical possession and have to have consent and in order to have consent has to have measure of control

Doctrine of recent possession: permits the court to make the inference that the possessor fo the property had knowledge that property was obtained in the commission of the offence and in certain circumstances was also party to the initial offence.

AR: Crown must show that the acc’d was found in possession of the item and that the item was recently stolen.

R. v. Terrence

Facts: T was a passenger in a stolen car, charged with ‘joint’ possession under older equivalent to 4(3)(b). Acquaintance invites him for a ride in his ‘brother-in-law’s car’, says he didn’t know it was stolen until police begin to chase them, at which point no choice/control over whether to exit vehicle. [Despite there being no evidence suggesting prior knowledge that car was stolen, or any involvement of T in theft of vehicle, Trial judge disbelieved T and held that he had knowledge.]

Issues: in joint possession what is required for consent?

Analysis: Terrence was not driving. He therefore did not meet the requirement of control.

Ratio: Must be evidence of control in addition to knowledge and consent.

Conclusion: For Terrence.

R. v. Kowlyk (SCC 1988)

Facts: August of 1982, police caught K’s brother while committing a theft. He admitted to three break and enters in early June. He then led police to the house he shares with K. Upon entering, he shouts “Wake up Ray, police are here. They got us. It’s all over.” K is found in bedroom with door closed. Police demand he come out. K opened window and attempted to sneak out but police enter to stop him. They find fourteen stolen items; and items were grouped according to separate break-

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Some things to consider in this analysis:

Time Nature of the object Rarity of the object Readiness it can pass between people Ease of identification

Impaired Driving

Basics driving offences/penalties are found in the Criminal Code and under the BC Motor Vehicle act.

MVA:

“24 hour suspension” where there are RG to believe ability to drive is “ affected by alcohol” [s. 215] (12 hour suspension for new drivers)

“Administrative Driving Prohibition” [section 94.1] (a consequence of an over .08 reading under Code, or refusal to give sample) 90 day suspension of driving, kicks in at 21 days lasts 90 days.

“Driving while prohibited” [s. 95] mandatory 14 days up to 6 months in jail

“Immediate Roadside Prohibition”: (s. 215.41 to 215.51) when a person is pulled over, asked to take a Breathalyzer, if a fail is blown that gives police grounds to the station to request a Breathalyzer in a different machine. These provisions allow an immediate 90 day suspension on the first Breathalyzer

o Goodwin v. BC: challenged provision, the SCC ruled that provice can regulate, violation of s. 8 but saved on s. 1 analysis due to minimum impairment test.

R. v. Kowlyk (SCC 1988)

Facts: August of 1982, police caught K’s brother while committing a theft. He admitted to three break and enters in early June. He then led police to the house he shares with K. Upon entering, he shouts “Wake up Ray, police are here. They got us. It’s all over.” K is found in bedroom with door closed. Police demand he come out. K opened window and attempted to sneak out but police enter to stop him. They find fourteen stolen items; and items were grouped according to separate break-

Policy: Officer would proceed by way of the IRP rather than the older ADP and the criminal code because it is easier and deters people.

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Criminal Code Offences

Driving while impaired (s. 253(1)(a))

Driving with more than 80 milligrams of alcohol in 100 millilitres of blood (s. 253(1)(b))

Driving while prohibited, s. 259(4)

Others include: Dangerous operation of MV (s. 249) Failing to stop while pursued by PO (s. 249.1) Crim neg causing death / bodily harm “street racing” (s. 249.2-4] Failure to stop at scene of accident (s. 252)

R. Ladouceur (1990) - “routine random checks” that are not part of a program (like R.I.D.E.) violate s. 9, but are justified under s. 1. (Thus, no 24(2) analysis where this occurs)

In Depth

1) Criminal Code Offences

I. Impaired Driving/over .08 (s. 253(1))

253. (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration

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i. AR: Operating or assists in operating all those mentioned + care and control of MV + (impaired by alcohol or drugs)

ii. MR: is the intent to assume care or control after the voluntary consumption of alcohol or a drug

Penalties for driving/over .08 (S. 255):

Imprisonment (s. 255)o Summary: (a) minimum: (1) first offence fine not less than 1K (2) second

offence imprisonment not less than 30 days and (3) subsequent offences imprisonment not less than 120 days (max 18 months)

o Indictment: Maximum of 5 years

Mandatory order of prohibition (259) – in addition to s. 255:o First Offence: min 1 year, max three years’ prohibition o Second Offence: Min 2 years, Max 5 years prohibitiono Subsequent Offence: Min 3 years

Definition of Care and control (258(1)(a): being in the driver’s seat and being in a position to set the MV in motion (sitting while drunk satisfied this)

To rebut the presumption of care and control from S. 258(1)(a) if acc’d raises “evidence to the contrary” as to whether she/he intended to set the vehicle in motion and there was no realistic risk that the car would be set in motion (causing possible harm to persons or property). More than a theoretical risk. Has to be SOME evidence.

o The existence of this realistic risk or danger is a finding of fact that TJ must examine all the relevant evidence to this end and may consider a number of factors such as:

location of care - facing concrete wall, no other cars there where was the person sitting where was the key was the car inoperable?

Alternative Plan: o 1) Evidence: that you had such an alternative plano 2) Implementation (it was not abandoned)

Grounds for demanding a breath sample using an ASD at roadside (s. 254(2)): PO has reasonable grounds to suspect that person has alcohol or a drug in their body and that person has, within the preceding three hours operate a MV. Then can depend person to provide forthwith a sample

253. (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration

R v Debot , SCC 1989 clarifies different standards:

Suspicion = could be possible (even if probability low)

“Reasonable suspicion” = Not quite probable but more than hypothetical

“Reasonable grounds” or “reasonable grounds to believe” = More than a possibility but less than balance of

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of breath that in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and if necessary to accompany the PO for that purpose.

Grounds for demand of breath test at station (254(3): when PO has reasonable grounds to believe that a person is committing or at any time within the preceding three hours has committed an offence under s. 253 as a result of the consumption of alcohol, then may demand made as soon as practicable to:

(1) provide as soon as practicable: samples of breath that will enable proper analysis to be made to determine the concentration if any alcohol in the person’s blood. May demand samples of blood after the initial test. And accompany PO for such a purpose.

Reasonable Grounds: Failure of ASD constitutes reasonable grounds for s. 254(3). Some facts to look at: reckless driving, incoherent speech, looking away.

Note: demand itself can be made outside of the three hour mark.

“as soon as practicable”: not specific time but there has to be a logical reason for delay, do not have to account for every minute. The delaying act has to be reasonably connected to what he was doing. (R. v. Naidu 2010 BCSA – affirmed by BCCA)

The “Presumption of Identity” S. 258: (c) provides for the presumption if identity of the breath samples, specifically that evidence of the results of the analysis provide conclusive proof that the concentration of alcohol in the acc’d both then sample taken and when driving to have been that as read on the devices if both analyses (at scene + at station) are the same, if different, take lowest one.

Preconditions for Presumption:1) each sample taken as soon as practicable after offence alleged to have been committed

(first sample not more than 2 hours, interval of 15 min between that and second test)2) Taken by qualified technician

Rebutting Presumption – Show all three:

R v Debot , SCC 1989 clarifies different standards:

Suspicion = could be possible (even if probability low)

“Reasonable suspicion” = Not quite probable but more than hypothetical

“Reasonable grounds” or “reasonable grounds to believe” = More than a possibility but less than balance of

R. v. Thomsen, SCC 1988

Facts: T stopped at roadside check for DD, asked for ASD, refused. Issues: are you ‘detained’ for purposes of s. 10 of Charter in these roadside stops? Do you have a right to 10(b) before responding to a demand for an ASD?

Analysis: given seriousness of gov objective here, its effectiveness as investigatory tool (detection of DD’s proven to save lives, etc), and the fact that 10(b) is given following demand made for Breathalyzer at station.

Ratio: detained for the purposes of s. 10 of the Charter. ASD provision has reasonable limit under s. 1 over s. 10(b)

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1) Approved instrument was malfunctioning or operated improperly

2) Malfunction or improper operation resulted in determination that the concentration for alcohol in the acc’d blood exceeded 80 mg of the alcohol in 10 mL of blood and

3) The concentration of alcohol in the acc’ds blood would not in fact have exceeded the 80mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed

Other Grounds for Challenging Breath Sample: Failure to discharge 10(b) Was the certificate of analysis (by qualified breath tech) properly served, completed

correctly Failure to establish the Breathalyzer was kept current Issues with the qualification of the breath tech herself (training, currency of knowledge

on instrument) Manner in which test was administered (room temperature, condition of mouthpiece) Evidence of vomiting or ingesting other substances between time of driving and sample

Failure to Comply Offense: Failure to Comply with Demand S. 254(5) “everyone commits an offence who, without reasonable excuse fails or refused to comply with a demand made under this section.” Demand has to be unequivocal, prompt, did the acc’d understand the words? If not then it was not equivocal.

Refusal and 10(b): Has to refuse 10(b) and refuse sample, will often make demand again after acc’d speaks with a lawyer.

Possible Defences: Was not unequivocal, did not refuse 10(b), no access to 10(b), was not prompt.

MVA Penalties

24 Hour Suspension S. 215(2)

o Has reasonable and probable grounds to believe driver’s ability to driver MV is affected by alcohol then can:

Request driver to drive MV to the nearest place to pull over Serve diver with a notice of a driving prohibition Request driver surrender licence, if he/she has it

Administrative Driving Prohibition section 94.1

o PO has reasonable probable grounds to believe: By reason of analysis of over .08, at anytime within 3 hours of operating or

having care or control of MV or Person failed or refused without reasonable excuse to comply with demand

under s. 254 of the CC.

o PO must: Take possession of person’s licence + serve notice of driving prohibition

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o Consequences of ADP: o 90 days suspensiono Driving while suspended can lead to MVA or CC charges of “driving while

prohibited”o 2 ADPs in 5 years: mandatory “responsible drivers program enrolment,

ignition lock system installed.

o Challenged to the ADP

Notice of prohibition acts as a temporary 21 day license If review of decision is sought have to do it within 7 days. Review is

oral/written

Grounds for review: Did not have care or control Blood alcohol content not .08 within 3 hours of driving Did not fail or refuse, or had reasonable excuse

Judicial review of ADP Review: review decision of the superintendent of MV are final but can be judicial reviewed in BCSC. Standard of review: “patently unreasonable” (Gordon v. Superintendent of Motor Vehicles, 2002 BCCA)

Immediate Roadside Prohibition (s. 215.41(3.1)) o If makes demand and has reasonable probable ground to believe as a result of the analysis that

driver’s ability to drive is affected by alcohol PO must: Take valid (if held) license Serve notice of driving prohibition

o (4) If PO has reasonable grounds to believe that driver failed or refused without reasonable excuse then must take same actions as in (3.1)

Challenges to the IRP

o Notice of IRP triggers immediate suspension – there is no grace period as with ADP

o Challenges:

o review may be requested within 7 days

o review oral or written, decision within 21 days

o grounds for review: (s. 215.5) no care and control no second analysis (on different device) “the result of the analysis on the basis of which the notice of driving prohibition

was served was reliable” proper service of notice of prohibition, full disclosure of evidence did not fail or refuse (or had a reasonable excuse)

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Defences

1) Entrapment

R. v. Mack, SCC 1988

Facts: at close of trial for trafficking, M seeks a stay of proceedings for entrapment. Testified that he persistently rebuffed police informer for 6 months. Only persuaded to sell due to persistence, use of threats, intimidation and a large cash inducement. Had a drug issue but had stopped prior to being induced to sell. TJ rejects entrapment, convicts of trafficking. CA upholds

Issues: Was this entrapment?

Analysis: police did have reasonable suspicion that M was involved in criminal conduct. but there was in fact no ongoing criminal activity here. Police persistence played a large part in persuading him to commit offence (he had to be made to return to his old lifestyle, contacts, etc.). Offence induced by their conduct, would not have occurred otherwise.

Key factor: the acc’d was threatened. Therefore the police did more than provide an opportunity, they induced the acc’d to commit the crime in question.

Ratio: See entrapment issues below.

Conclusion: Entrapment made out

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Definition: entrapment is a situation created by state agents that induces a person to commit a crime they otherwise would not have committed. It is an issue for criminal law theory as the possibility of prosecuting a person who is morally innocent is repugnant to the court. Rationale: the court is trying to maintain good repute of administration of justice.

Entrapment occurs where police: 1) Provide a person with an opportunity to commit an offence without acting on a

reasonable suspicion that this person is already engaged in criminal activity or acting in bad faith or

2) Have reasonable suspicion or act in the course of a bona fide inquiry, but go beyond providing an opportunity and induce the commission of an offence.

Reasonable Suspicion: more than hypothetical. So the hurdle is low.

On (2): the test should not turn on the acc’d state of mind, the focus is on the police and not on the person. Assessment should be on the conduct of the police and it should be objective.

Predisposition of the acc’d (Past or present conduct): this is relevant to the issue of whether police had a reasonable suspicion and were justified in providing the acc’d with an opportunity to commit further offence. However, there must be sufficient connection between the past conduct and provision of an opportunity to commit a specific crime in order for police conduct to be justified.

Factors whether police wen beyond “[providing an opportunity”:1) Type of crime being investigated and availability of other techniques for its detection2) Whether the average person, with similar strengths and weaknesses as accused, in

position of the acc’d, would be induced into the commission of a crime 3) If it involves the use of exploitation, use of threats or anything like that.

Procedural Issues:

When: consider it only when Crown has proved the elements of the offence beyond a reasonable doubt

Nature of defence: entrapment is a form of abuse of process issue, not justification or excuse.

Who should decide : judge, too fragile to be left to the jury.

Burden: on the acc’d

Standard: BoP

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Remedy: Only in the clearest of cases a judicial stay should be entered. This is not an acquittal, no ruling on guilty or not guilty,

R v. McKenzie, 2013 SCC: a tip will not rise to where the police act on ti if they don’t act. If the police do not confirm what the tipster is saying, then have to first ascertain confirmation that person is a drug dealer for instance.

R. v. Shaver (2015) ONSC - confirmation can come from, are you a dealer? that is fine for confirmation “what do you need?” is a confirmation and raised the tip to reasonable suspicion

Exception to Entrapment – Random Virtue Testing

R. v. Showman, SCC 1988

Facts: Police acting on information from K and others that S is a drug supplier, ask K to arrange a meeting with S to purchase drugs. Police undercover meet with K and S and make a small purchase of drugs from S. Three days later, UC meets again with S, S in possession of 3 half-pound bags of marijuana, sells on half-pound bag to PO. S offers to obtain cocaine and more port for later meeting. Boasts of knowing good suppliers, speaks as experiences dealer. Roughly 3 weeks later, UC phones S, S calls back the next day and they meet the day following with S taking him to visit supplier, M. S charged with trafficking (for second sale), testifies that he had been entrapped into committing the offence because of pressure exerted on him by a friend K.

Issue: Entrapment?

Analysis: police conduct here, view objectively, did not amount to entrapment. Acted on reasonable suspicion, entitled to provide S with opportunity to commit offence; entitled to exploit close relationships of S (it didn't violate 'dignity of the relationship' and wasn't "unduly exploitive"). This alone couldn't be basis of going further than providing an opportunity to commit offence. POs didn't otherwise employ tactics designed to induce S to commit offence. None of the circs found in Mack here.

Conclusion: no entrapment here.

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Explanation of rule: Adds to the rule in Mack Police may present opportunity to commit crime where a person raises a reasonable suspicion or where they undertake a bona fide investigation “at an

area where it is reasonable suspected that criminal activity is occurring.” "When such a location is defined with sufficient precision, police may present any person associated with the area with the opportunity to commit the particular offence.” Being present in the area suffices to establish an association. (Randomness is thus permissible within these boundaries.)

R. v. Seymour 2015 MBQB - a belief that a source is reliable can be the basis of reasonable suspicion but has to have evidence that its believable.

2) Necessity

Necessity: excuses criminal conduct where the accused was in “clear and imminent peril: and acted to prevent a greater harm from occurring. (CL defence from Perka)

Burden:

R. v. Barnes

Facts: VPD was conducting “buy and bust” op in the Granville Mall area, where trafficking was becoming an issue. UC officer would attempt to buy drugs from persons who, in the PO’s opinion appeared to be dealers. Acting on a hunch, UC approaches “scruffy: looking man and asks if has “weed”, B declines but UC repeats question and persists until B agrees to sell small portion of pot. B charged with trafficking, found guilty but TJ found that B was entrapped, UC had engaged in “random virtue testing” granting stay.

Issue: was B subjected to “random virtue testing”? Was this entrapment?

Analysis: POs had no reasonable suspicion here about B in particular (looking scruffy wasn't enough) but PO did present her opportunity in course of a bona fide inquiry carried out in this area, and a random approach was justified.

Ratio: Random virtue testing: only arises when PO present a person with opportunity to commit an offence without reasonable suspicion, person is already engaged in it or the physical location is associated with likely usage

Conclusion: Not entrapment, survives the above articulated the above exception to the test.

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Elements of the defence:

1) Clear and Imminent peril (reasonable or normal capacity to withstand pressure)2) No reasonable legal alternative to disobeying the law

3) Proportionally: harm done has to be proportionate to the danger.

Burden: defense raises the defence, and must raise an air of reality for each element for the defence. Then the burden shifts to the crown that one or more elements do not apply.

Air of reality: some evidence on which jury acting reasonably could acquit

Involvement in criminal activity at the time: can rely on this

Exceptions to application of defence: if the reasonable person could foresee then would be precluded from this defence.

R. v. Ploue: any reasonable alternative to driving would have taken too much time, there was a time pressure of the situation and lack of medical background the acc’d would not have felt any alternative. Sincere and dire medical emergency – would outweigh driving while intoxicated. Should not be thought of as condoning. So not any alternative.

Perka v. the Queen (SCC 1984)

Facts: A (x 4) were on a boat conveying cannabis from Columbia to Alaska. Mechanical issues; emergency docking on Vancouver Island. Say they intended to repair the boat, reload the drugs, and proceed. Charged with importing cannabis.

Issue: does the emergency docking clear and imminent peril sufficient to engaged necessity defence?

Analysis: the court recognized the CL defence of necessity, it operates as an excuse and not a justification. Narrowly articulated confining circumstances in which the accused’s actions were “normatively” or “morally involuntary”,

Application: There was an air of reality here but the TJ did not instruct jury properly

Ratio: see below.Conclusion: TJ did not instruct jury properly.

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R. v. Latimer:

Facts: A killed his 12 yr old daughter who suffered from severe cerebral palsy and experienced continual pain. Various medical procedures were tried but others were still available. Charged with murder, pleaded necessity. TJ refused to leave this defence to the jury. Convicted of 2nd degree murder.

Issue: Is necessity available? Is it made out? Was there an air of reality?

Analysis: no air of reality in this case as to necessity. No peril here (she wasn’t terminally ill or about to die). There was a legal alternative to her pain further treatment. Her death was a “completely disproportionate” response to her pain”. The court indicates that there must remain an awareness for the need to respect life, dignity and equality of all individuals affected by the act in question. The fact that the victim in this case was disabled rather than able-bodied does not affect the conclusion that non of the three elements to make out a defence of necessity had an air of reality.

Ratio: Modification of the three elements from Perka:

First 2: assessed on a modified objective standard: situation and characteristics of the acc’d

Third: purely objective

Yet, the harm avoided need not “always clearly outweigh” the harm imposed, it need only be…

Conclusion: No necessity.

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3) Duress

Definition: a defence that applies where the acc’d commits offence while subject to a threat or compulsion from another person. It serves to excuse the act, leading to a full acquittal.

Difference between Necessity and Durres:

Where it applies:

1. as a defence available under s. 17 of the Code to a principal offender who commits the offence;

2. as a defence at common law available to a party to an offence; or

3. as a factor to consider that, in some cases, may raise a doubt about the mental element of the offence.

(i.e., short of either stat or CL defence applying)

Burden: before the defence may be put to the jury the acc’d must raise an air of reality for each element of the defence. Air of reality means some evidence on which a jury acting reasonably could conclude that each element applied. The crown then bears the burden of proving BARD that one or more not made out.

1) S. 17 of the CC – Compulsion by threats commit an offence under compulsion by threats of immediate death or bodily harm from a person, prove that there was a belief that the threat will be carried out if person is not a party

a. 4 Limits : person making threat has to be present, threats have to be immediate, no objective component, no reasonable alternative excludes a whole bunch of offences – no safe avenue escape or proportionality.

Limitation on the defence: 1) High treason or treason2) Murder3) Piracy4) Attempted murder5) Sexual assault with a weapon6) Threats to a third party or causing bodily harm7) Aggravated sexual assault8) Forcible abduction9) Hostage taking10)Robbery11)Assault with a weapon causing bodily harm 12)Aggravated assault13)Unlawfully causing bodily harm 14)Arson or 15)an offence under s. 280 to 283 (abduction and detention of young persons

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2) Defence at CL: acc’d acts under duress where:

i. she was compelled to commit the offence by a threat of death or bodily harm to herself or another person;

ii. there was no safe avenue of escape;

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iii. the offence committed was proportionate to the threat faced

Paquette v. the Queen, SCC 1977

Facts: P compelled at gun point to drive two others to store where they robbed and killed. P not present at robbery/homicide. P relies on CL duress to negate MR for “common intent” in 21(2) of Code; argues s. 17 applies only to principals who commit offence; jury acquits. Crown appeals: P can’t rely on CL duress, only s. 17, which precludes reliance for murder.

Issue: can the acc’d still rely on s. 17? He wants to evade it

Ratio: because of wording, “a person who commits an offence”,

s. 17 is limited to “cases in which the person seeking to rely upon it has himself committed the offence.” CL defence of duress applies to parties to murder.

Has been overturned

R. v. Hibber, SCC 1995

Facts: A charged, as a party, with attempted murder of C and convicted of a lesser included offence (agg. assault). A testified that he took B to C’s apartment because B had a gun, B punched him in face several times and threatened to kill him (A) if he did not co-operate, and that he (A) had no opportunity to run away or warn C without being shot.

Issues: 1. Where a person is charged as party acts under duress, does this negate the MR for party

liability (under ss. 21(1) and (2))? 2. Does the CL defence require no ‘save avenue of escape’?3. How is this to be assessed: on a subject or objective standard?

Analysis: Given the minimal intent required (to aid/abet, form common intent), the fact of being under duress does not negate the MR for the party provisions of Code, but it might do so for some offences.

Standard: Modified objective standard: must take into account human frailties of the accused, their capacities and frailties.

Crown must prove: The acc’d belief that no safe avenue was not available was not reasonable.

Ratio: the defence of duress does require that there be no safe avenue of escape because, as with defence of necessity, it is premised on a recognition that acts carried out under duress are normatively involuntariness. No safe avenue is one of a series of conditions that must be met before a court can recognize an act as being normatively involuntary.

Conclusion: in light of new interpretation of s. 21(1) and (2), instructions to jury erroneous. New jury would need to be told that safe avenue is to be assessed on a ‘modified objective’ test. New trial ordered

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R. v. Ruzic

Facts: R charged with importing heroin, using a fake passport, 1994. R testified that back in Belgrade, she was repeatedly threated by M, who also physically and sexually assaulted her. -says M compelled her to import drugs alone to Canada, else he would harm mother, but trip involved 4 day stopover in Athens. Expert evidence supported R’s assertion M possibly part of “roving gangs,” and general lawlessness in former Yugoslavia. R believed complying only way to save mom; duress under s. 17

Issue: is it a principle of fundamental justice that a morally involuntary acts should not be punished? If so can challenge s. 17

Analysis: It is a P of FJ that only involuntary conduct should not attract the penalty and stigma of criminal liability, and this extends to conduct that is morally involuntary. This is

because there are a number of earlier cases where court recognizes moral blameworthiness.

The requirements in s. 17 for physical presence (of person making threat) and immediacy of threatened harm violate s. 7 because can result in conviction for Accused persons who carry

out morally involuntary acts. cannot be saved under s. 1 because the common law defence

allows another way to do this.

On CL the court says: evolving consensus in CL in US, UK, Aust, and Canada that CL defence contains no requirement for immediacy or presence. But there should be a “close temporal connection between the threat and the harm threatened.”

without this, doubt is cast on whether there was a threat or there was no safe avenue of escape.

modified objective standard applied to: whether there is a threat at all. For a person in his position, frailty etc

Ratio: See above for change of s. 17.

Conclusion: S. 17 not completely struck down just immediacy part of the provision.

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