New 4 part article on the Canadian Supreme Court decisions which have revised the framework for Charter violations, the meaning of
Written By:
Reid
Oct 07, 2009
Section 24(2) Charter: Rule changes - the "revised framework." Part 1
Introduction
The Supreme Court of Canada changed the rules again, in a series of landmark decisions released on July 17, 2009. However, unlike the NHL, the criminal justice system cannot shut down for a year to re-group. Rule changes in frontline policing happen at an alarming rate and are on-going.
The landmark cases are:
Section 24(2) Charter: rule changes - the "revised framework" Part 2 contemporary rules for "Investigation Detention"
Investigative detentions are not created equal. There are two classifications of investigative detentions: Charter detention and non-Charter detention.
The right to counsel applies to Charter detentions - the suspect must be informed of the right to counsel when a Charter detention occurs. Conversely, the right to counsel does not apply to a non-Charter detention - the suspect does not have to be informed of the right to counsel.
The differences between Charter detention and non-Charter detention are: (i) duration (ii) place (iii) type of questioning: purpose, extent and content dialogue, and (iv) exit access: whether the suspect was free to leave at any time.
Click here for Part 2
Section 24(2) Charter: rule changes - the "revised framework" Part 3.1 - contemporary rules for "Investigation Detention"
I. Make the Call
You are a uniform police officer on patrol
4:00 pm: Radio broadcast #1: male person attempting to use a stolen credit card at the liquor store, 2825 Brooklyn Road. A back-up officer is sent.
4:05pm: Radio broadcast #2: the backup arrives first, before you. She informs you by radio that two male suspects are present.
4:08 pm: Arrival. The back-up officer is already inside the liquor store. Investigation reveals the following:
Section 24(2) Charter: rule changes - the "revised framework" Part 3.2 - Implied demand: Applying Grant
I. Implied Demand: point-of-reference
"Wait a minute. I need to talk to you before you go anywhere."
In R. v. Suberu (2009), the SCC applied the Grant 3-step decision-making model to decide whether this police statement constituted an "implied demand." It did not.
II. Two Stages of Investigative Detention
In R. v. Suberu (2009), the SCC divided an investigation detention into stages: (a) pre-exploratory questioning (the pedestrian stop - the initial stage), and (b) post-exploratory questioning (Charter detention - formal interrogation). This common-sense approach makes investigative detention a work-in-progress, a process that changes from investigative detention into a sec. 495 CC arrest or a release.
Investigative detention is built in stages. Each stage is defined by the volume of information. The starting point of investigative detention is uncertainty, during the hectic moments following a crime-in-progress. Every investigative detention starts with limited information - mere suspicion - and leads to a decision: make a sec. 495 arrest or release. The decision depends on belief - the amount of information known or not known - all with a time clock ticking.
The twin-goals of investigative detention are self-protection and find the truth. This requires changing the belief from mere suspicion to either reasonable grounds or no belief of connection.
Investigation detention progresses only if more incriminating evidence is obtained - more information is learned. As additional evidence connects the suspect to a crime, the detention lengthens, triggering the need for the right to counsel. Click here for part 3.2
Section 24(2) Charter: the "revised framework" for determining the admissibility of evidence Part 4.1: Investigative detention not justified on a "hunch"
I. The sec. 24(2) Charter Pendulum Swings Back
On July 17, 2009, the SCC reversed a controversial Ontario Court of Appeal decision in R. v. Harrison which dealt with the police seizure of 35 kg of cocaine during a traffic stop. Despite a "flagrant" Charter violation, the Ont. CA had admitted the seized cocaine because the offence was more severe than the Charter violation. This ruling marked a significant sec. 24(2) Charter pendulum swing.
However, in July of this year, by applying the new sec. 24(2) Charter decision-making model established in R. v. Grant (2009), the Supreme Court of Canada excluded the drugs, allowed the accused's appeal, and acquitted the accused.
Click here for part 4.
Introduction
The Supreme Court of Canada changed the rules again, in a series of landmark decisions released on July 17, 2009. However, unlike the NHL, the criminal justice system cannot shut down for a year to re-group. Rule changes in frontline policing happen at an alarming rate and are on-going.
The landmark cases are:
R. v. GrantThe changes include:
R. v. Suberu
R. v. Harrison
R. v. Shepherd
- A "revised framework" for determining the admissibility of evidence obtained after a Charter violation.
- Re-wording of the definition of "detention."
- Four points-of-reference regarding "how to apply" the revised framework.
Section 24(2) Charter: rule changes - the "revised framework" Part 2 contemporary rules for "Investigation Detention"
Investigative detentions are not created equal. There are two classifications of investigative detentions: Charter detention and non-Charter detention.
The right to counsel applies to Charter detentions - the suspect must be informed of the right to counsel when a Charter detention occurs. Conversely, the right to counsel does not apply to a non-Charter detention - the suspect does not have to be informed of the right to counsel.
The differences between Charter detention and non-Charter detention are: (i) duration (ii) place (iii) type of questioning: purpose, extent and content dialogue, and (iv) exit access: whether the suspect was free to leave at any time.
Click here for Part 2
Section 24(2) Charter: rule changes - the "revised framework" Part 3.1 - contemporary rules for "Investigation Detention"
I. Make the Call
You are a uniform police officer on patrol
4:00 pm: Radio broadcast #1: male person attempting to use a stolen credit card at the liquor store, 2825 Brooklyn Road. A back-up officer is sent.
4:05pm: Radio broadcast #2: the backup arrives first, before you. She informs you by radio that two male suspects are present.
4:08 pm: Arrival. The back-up officer is already inside the liquor store. Investigation reveals the following:
- upon entering the store, you see the officer, one employee, and two men.Click here for Part 3.1
- the officer is at a cash register talking to the store employee and one of the men (suspect #1)
- the second man (suspect #2) walks past you and says, "He did this, not me, so I guess I can go." This man walks to the door and is leaving.
Section 24(2) Charter: rule changes - the "revised framework" Part 3.2 - Implied demand: Applying Grant
I. Implied Demand: point-of-reference
"Wait a minute. I need to talk to you before you go anywhere."
In R. v. Suberu (2009), the SCC applied the Grant 3-step decision-making model to decide whether this police statement constituted an "implied demand." It did not.
II. Two Stages of Investigative Detention
In R. v. Suberu (2009), the SCC divided an investigation detention into stages: (a) pre-exploratory questioning (the pedestrian stop - the initial stage), and (b) post-exploratory questioning (Charter detention - formal interrogation). This common-sense approach makes investigative detention a work-in-progress, a process that changes from investigative detention into a sec. 495 CC arrest or a release.
Investigative detention is built in stages. Each stage is defined by the volume of information. The starting point of investigative detention is uncertainty, during the hectic moments following a crime-in-progress. Every investigative detention starts with limited information - mere suspicion - and leads to a decision: make a sec. 495 arrest or release. The decision depends on belief - the amount of information known or not known - all with a time clock ticking.
The twin-goals of investigative detention are self-protection and find the truth. This requires changing the belief from mere suspicion to either reasonable grounds or no belief of connection.
Investigation detention progresses only if more incriminating evidence is obtained - more information is learned. As additional evidence connects the suspect to a crime, the detention lengthens, triggering the need for the right to counsel. Click here for part 3.2
Section 24(2) Charter: the "revised framework" for determining the admissibility of evidence Part 4.1: Investigative detention not justified on a "hunch"
I. The sec. 24(2) Charter Pendulum Swings Back
On July 17, 2009, the SCC reversed a controversial Ontario Court of Appeal decision in R. v. Harrison which dealt with the police seizure of 35 kg of cocaine during a traffic stop. Despite a "flagrant" Charter violation, the Ont. CA had admitted the seized cocaine because the offence was more severe than the Charter violation. This ruling marked a significant sec. 24(2) Charter pendulum swing.
However, in July of this year, by applying the new sec. 24(2) Charter decision-making model established in R. v. Grant (2009), the Supreme Court of Canada excluded the drugs, allowed the accused's appeal, and acquitted the accused.
Click here for part 4.