FEB 7 2013
WDW325 Lecture 5
Recap From Last Week
- Arrest powers are in the Criminal Code
- Police can get a warrant if they have RPG
- Police can arrest without a warrant if the have RPG -- criteria in s. 494 or s. 495
o RPG that someone HAS committed an offence (in the past already
- Powers of private citizens to arrest (without a warrant) are more limited
- All the powers of arrest are codified
o No common laws of powers of arrest anymore
o Have the say the words, and give you your rights
DETENTION (common law power)
- Physical or psychological restraint short of arrest
- Police need “articulable cause”/“reasonable grounds to suspect”
- Section 10 (the rights you have)
- They have the right to physically detain you
- The police engage you in conversation, that you leads to feel like you have no choice
but to play along (physically or psychologically detain you)
o You never have an obligation to stay or talk to the police
Waterfield Test – R. v. Clayton and Farmer
Anytime some is detained, what the detention justified
(1)Were the police acting in the course of their duties when they detained Clayton and
(1)As long as the detention is connected with crime and keeping peace they are
in the course of their duty
(2)Was the detention (deprivation of liberty) justified?
(1)Justified on the grounds of the person they detained and the offence
(3)Did the detention comply with section 9 of the charter?
Reasonable grounds to suspect a nexus based on:
1. Seriousness of the offence
2. Information known to police
3. Geographic/temporal scope of detention (how narrowly it is focused)
4. Risk to public safety
- What happens if the police obtain evidence during a unlawful detention?
- What happens if the police obtain evidence following an arbitrary arrest?
- What happens if the police obtain a statement/confession before they advise a
detainee of his/her rights under s. 10(b) of the Charter?
- Is the evidence automatically excluded? FEB 7 2013
R. v. Collins (1987, S.C.C.)
FACTS: Police had a suspected drug trafficker under surveillance in a bar in Gibson, B.C. ;
police tackled Collins in a bar and put her in a throat hold (to stop her from swallowing
drugs); police used “considerable” force in effecting the search; found a balloon of heroin in
Narcotics Control Act (now Controlled Drugs and Substances Act)
- Very specific powers to conduct searches with a search warrant
- Any place other than a dwelling home, when he have RPG believe there are
narcotics, not only the place but anyone on the property
10. (1) A peace officer may, at any time,
(a) without a warrant enter and search any place other than a dwelling-house...in which
he reasonably believes there is a narcotic...
(b) search any person found in such place; and
(c) seize and take away any narcotic found in such place...
FINDING: search was unreasonable
A search that was obtained with RPG can be conducted in a unreasonable (they cannot
conduct it in any way they want) must be in a reasonable manner a
What happens to the heroin: should it be admitted anyway?
S. 24(2): Where … a court concludes that evidence was obtained in a manner that
infringed or denied any rights or freedoms … 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.
There has to be a connection of the violation of the charter right and the discovering the
evidence and admitting that bringing in the evidence would bring the administration of
justice into disrepute
Focus on effect of admission of evidence
Not intended as remedy for police misconduct
Would admitting evidence bring the administration of justice into disrepute in the
eyes of a reasonable person, dispassionate and fully apprised of the circumstances
of the case?
About preserving the integrity of the system
R. V. Collins (1987, S.C.C.)
TEST FOR EXCLUSION OF EVIDENCE
a) Trial fairness
i) What kind of evidence was obtained? (real vs. conscriptive evidence)
- Would admitting the evidence be unfair
- Real evidence: something that is tangible/ physical evidence
- conscriptive: anything that the accused participated in creating (would not exist if
the accused did not participate)
it would be excluded if it was unfair if bought into court FEB 7 2013
b) Seriousness of the Charter violation
i) was Charter violation serious or of a merely technical nature?
Technical: “under arrest for assault ..but really with assault with a weapon”
Did they know what they did was wrong but did it anyways?
ii) could evidence have been otherwise obtained? Other techniques
was there some other way for them to obtain the evidence that would not have
violated ones charter rights
iii) deliberate/wilful/flagrant vs. inadvertentgood faith?
iv) circumstances of urgency or necessity?
c) Effect of Exclusion
i) is the offence serious?
ii) is the evidence essential to Crown’s case?
* must be balanced against each other
What would the reasonable think if it was on trial
R. v. Stillman (1997, S.C.C.)
Murder of a young girl; found in a river with bite mark
Stillman was arrested (“young offender”)
Lawyer sent a letter to the police saying he will not answer questions and will not
consent to bodily sample
After letter from counsel:
(1) scalp hair, pubic hair, teeth impressions;
Stillman was crying during the interrogation; went to the washroom, used a tissue
and discarded the tissue in garbage which the police seized without a warrant for
RULING: Forced scalp hair, pubic hair, teeth impressions amounted to serious violations of
s. 8 (search) and s. 7 (security of the person)
“Canadians think of their bodies as the outward manifestation of themselves. It is
considered to be uniquely important and uniquely theirs. Any invasion of the body is an
invasion of the particular person. Indeed, it is the ultimate invasion of personal dignity and
privacy.” (seize of “information”)
Seizure of the tissue was a less serious violation of s. 8
But should the evidence be excluded?
REFORMULATES THE TEST UNDER STEP 1
If you participate in evidence: it is consriptive (teeth is consprictive) but for the charter
breach and participation, they would not have gotten it he participated in formulating the
Trial Fairness – characterize the evidence
a) Conscriptive evidence FE