LAWS 3306 Lecture Notes - Lecture 7: Arbitrary Arrest And Detention, Reverse Onus, Peremptory Challenge

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2 Aug 2016
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Course
LAWS 3306
Mar 14
Intro
-Packer hoped that due process would promote equality before the law.
-a lot of racial violence was occurring during packers time.
-due process would restrain the state. Focused on specific acts of police abuse and violence.
-AA’s and aboriginals are over represented at every step of CJS
-Even though there was significant due process victories they did not affect minority over
representation.
-model is instead being used to justify the situation.
Investigative stops
-number of studies have shown that they are used as tool against specific groups
-Ericson study: police engaged in constant proactive stops. Used to remind marginalized people of order
of things.
-Ontario commission on systemic racism released report. Found that 43% of black males interviewed
had been stopped in last 2yrs. White, 25%.
-black males believed they were being stopped due to their prejudices.
-Remedies: if evidence is discovered then it is excluded. If there are no charges laid, a person has no
remedy for their charter violation.
Rv Hufsky
-SCC went beyond limited exceptions to allow ride checkpoints.
-authorized random stopping of motorists under provincial highway traffic act
-this gives them power to stop a vehicle for no criminal reason.
-this power was confirmed in Ladouceur.
Ladouceur
-dissent said this power would allow officers to abuse it. It would also allow for hunches and prejudice to
be groudns to pull people over
R v Simpson
-OCA
-officer stakes out what they think is a crack house.
-they see someone leave the house and pulls him over using HTA powers.
-Court said this was not sufficient grounds to detain the individual.
-Cannot use HTA powers for investigation of criminal activity. Especially when no evidence of criminal
activity is present.
R v Mellenthin
-Court excluded drugs discovered when police abused powers by making inquiries not based on highway
offences
-their initial detention was lawful but not the follow up questioning.
Complaints against police
-civil damages is possible. However damages in arbitrary detention are quite small. Legal fees will be
higher than financial benefit.
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-complaints set to police service normally fall on deaf ears.
-people investigating police misconduct are normally employees of the same police service.
Smith complaint
-investigative stop, partial strip search of Jamaican woman.
-complaint made.
-takes 8 months to investigate.
-first hearing is disbanded, second is stop because adjudicator was deemed bias by police.
-third hearing stated that allegation was not clear.
Drummond complaint
-high risk take down of black male
-complaint rejected despite evidence to suggest that police intentionally breached charter
-police received complaint from someone who said they saw black male get in car with gun.
-police thought description of car matched and took down Drummond.
-police could not locate complainant
Bail
-same as judicial interim release.
-criminal code sets out justification for detainment
-primary ground: ensure attendance in court. Flight risk
-second ground: public safety. Recidivism concern.
-tertiary ground: gravity of offence, strength of case, weapons, potential lengthy punishment.
-crown has onus to show why accused should be detained on either of these grounds
-in sub section 6 there is a reverse onus position. Accused must show why their detention is not
justified. Applies for certain offences including: gangs, terrorism, firearms, certain sexual offences,
trafficking or production.
-black males are more likely to be denied bail. Especially with drug offenses.
-unemployment may play a role in decision to detain and black population has higher unemployment
rate.
-system is based on risk aversion. Police can release individuals on promise to appear or certain
conditions. They almost never do because they fear recidivism.
-person then shows up to bail court within 24hrs. Crowns are also risk averse. They also fear about crime
being committed being on bail
-JP’s are also now being risk averse. Releasing a person who goes out and commit crime is bad for their
reputation. Detaining someone is seen as being more cautious and less risky.
-more people now are being detained on remand than those who have actually been found guilty and
serving their sentence.
R v Pearson
-SCC upheld reverse onus for bail. Found it necessary because dealers are significant risk of flight and
further drug offences.
-court acknowledged that it would affect small time dealers.
-small time traffickers typically have low employment addiction issues or prior records so they will be
ones less likely to be released.
-reverse onus was argued to have caused black overrepresentation of black males in pre-trial detention
Jury selection
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