[CRIMINAL

LAW – DIAB – 1L: 2016 T1]

[ROCHELLE LUNGFISH]

NB: This is a combination Framework and CAN for Professor Diab’s 2016 Crim
course. It is based on my notes, Diab’s course powerpoints, and his PDF
summaries. The first 3 pages of this document are the Table of Contents
followed the Framework/CAN itself. Each section begins with the relevant
Charter section and a narrative, followed by all of the relevant tests laid out
in a step-by-step, YES/NO fashion. At the end of each section are the CANs for
the relevant cases. Please forgive any errors, omissions, or colourful language.
Have fun, and GOOD LUCK ON YOUR EXAMS! You’ll be just fine, I promise. Any
questions, just find me on Facebook and ask. -The Lungfish

 1. VAGUENESS, OVERBREADTH & STRICT CONSTRUCTION [S.7 OF THE CHARTER]
a. The Doctrine of Vagueness
i. Test for Whether a Law is Unconstitutionally Vague
1. Reasons for Vagueness
b. The Doctrine of Overbreadth
i. Test for Whether a Law is Unconstitutionally Overbroad
1. Reasons for Overbreadth
c. The Doctrine of Strict Construction / Interpretative Principles in Cases of
Uncertainty
§ Nova Scotia Pharmaceuticals
§ Canadian Foundation
§ Levkovik
§ Heywood
§ Pare
§ Bell ExpressVu

2. (SS) SEARCH) & SEIZURE [S.8 OF THE CHARTER]
a. (REP) Reasonable Expectation of Privacy & (RPG) Reasonable Probable
Grounds for SS
i. Step-by-Step Analysis of s.8 Issue to Assess Validity of Search
1. Test for REP for SS
a. Evans Test for Search
b. Wong Test for REP (Place/Thing)
c. Edwards Test for REP in Totality of the Circumstances (Territorial
Privacy – Space or Place)
d. Plant Test for REP (Informational)
e. Cole Test for REP (Thing/Informational)
2. Hunter Test (WarranED SS)
3. Collins Test (WarrantLESS SS)
b. RPG of Sniffer Dog Test for SS
i. Sniffer Dog Test (SS with Sniffer Dogs)
§ Hunter
§ Stillman
§ Wong
§ Plant
§ Tessling
§ Edwards
§ Patrick
§ Cole
§ Collins
§ Kang-Brown
§ A.M.
§ Chehil
§ MacKenzie

3. A&D) ARREST & DETENTION [S.9, S.10(A), S.10(B) OF THE CHARTER]
a. General Points on the Law of A&D
b. Grounds for Arrest & Arrest Powers in Part XVI of the Criminal Code
i. Arrest WITHOUT a Warrant
1. Police Officer Arrest
a. Test for Public Interest
2. Citizen’s Arrest
3. Release After Custody
a. Test for Public Interest
ii. Test for Arrest WITHOUT a Warrant
iii. Test for Arrest WITH a Warrant
c. Ancillary Police Powers (At Common Law)
i. (SIA) Search Incident to Arrest: Frisk, Immediate Surroundings, Distance from
Place of Arrest, Things Seized on Arrest
1. Test for Whether Search Truly Incidental to Arrest
a. Test for “Frisk” SIA of Person
b. Test for SIA of Immediate Surroundings
i. Cloutier Test
ii. Caslake Test
c. Test for SIA of Things Seized 1. Upon Arrest, 2. At a Distance from
Place of Arrest
ii. (SIA) Search Incident to Arrest: Strip
1. Test for “Strip” Search Conditions
a. Golden Rules Test
iii. Investigative Detention
iv. Search Incident to Investigative Detention
1. Test for Investigative Detention
a. Test for ‘Suspicion’ at Common Law
b. Test for Search Under Investigative Detention
c. Test for Preliminary Investigative Questioning
d. Detention for the Purposes of s.9 & s.10 of The Charter
i. Test for Whether & When a “Detention” has Occurred for Purpose of s.9
1. Grant Test (Definition of Detention)
a. Grant Test #2 (Reasonable Person Subject to Non-Legal Compulsion)
ii. Test for General Detention Power of a GROUP
1. Clayton Test for Reasonable Necessity
iii. Test for General Detention Power of an INDIVIDUAL in a Police Cruiser, etc.
1. Clayton Test for Reasonable Necessity
§ Kang-Brown, Chehil
§ Debot
§ Debot, Storrey, Baron v. Canada
§ Can v. Calgary (Police Service)
§ Cloutier
§ Caslake
§ Fearon
 § Golden
§ Mann
§ Grant
§ Suberu
§ Storrey
§ Clayton
§ Aucoin

4. CONFESSIONS [COMMON LAW; S.10(B) & S.7 OF THE CHARTER]
a. Step-By-Step Analysis of Admissibility of a Confession/Statement
i. Preliminary Consideration on the Law of Confessions
1. Test for ‘Res Gestae’ Statement
ii. The Common Law Confessions Rule
1. Test for Deciding Who is (PIA) Person in Authority
2. Test for Admissibility of Confessions to a Non-PIA
3. Oickle Test for Voluntariness of Confessions
4. Operating Mind Test
iii. The Right to Counsel Under s.10(b) of The Charter
1. Test for Valid Discharge of Police Duty Under s.10(b)
2. Test for Valid Waiver of s.10(b)
3. Test for the Right to Re-Consult with Counsel
iv. The Right to Silence Under s.7 of The Charter
1. Hebert Test for Breach of Right to Silence Under s.10(b)
2. Test for Continuous Questioning
3. Test for Actively Eliciting Evidence
b. Summary of the Common Law Confessions Rule VS Charter Protections
§ Rothman
§ Oickle
§ Clarkson
§ Brydges
§ Manninen
§ Sinclair
§ Hebert
§ Singh

5. EXCLUSION OF EVIDENCE [S.24(2) OF THE CHARTER]
a. Step-By-Step Analysis of a s.24(2) Issue to Assess Admissibility or Exclusion of
Evidence
i. Grant Test #1 (Exclusion of Evidence)
1. Cote Test Step 1
2. Cote Test Step 2
§ Grant
§ Harrison
§ Cote
b. Summary of Application from Grant’s s.24(2) Analysis to Various Forms of
Evidence & the Likely Outcomes
 Vagueness, Overbreadth & Strict Construction [s.7 of the Charter]

s.7 – LIFE LIBERTY AND SECURITY OF A PERSON: Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of fundamental justice.

I. THE DOCTRINE OF VAGUENESS:

• Vagueness can be raised under s. 7 of the Charter since it is a principle of fundamental justice laws not to be vague.
• The doctrine of vagueness comes from the constitution and the common law.
• A law is “vague” when its application cannot be clearly defined or ascertained.
• In Nova Scotia Pharmaceuticals, the SCC recognized that it is a ‘principle of fundamental justice’ under s.7 of the
Charter that a person ought not to be convicted of an offence that is vaguely defined.
• The test for whether a law is unconstitutionally vague is whether: (1) it does not “sufficiently delineate any area of risk”
[of prosecution/criminal culpability] & thus can provide neither fair notice to the citizen nor a limitation of enforcement
discretion, and either (2) It lacks a “solid core of meaning”, or (3) It is “not intelligible” & thus fails to give sufficient
indications that could fuel a legal debate by offering no grasp to the judiciary (Nova Scotia Pharmaceuticals).
• Therefore, if a law is simply “intelligible” or “sufficiently delineates an area of risk”, it is not vague.
• A law in which criminal culpability turns on the scope or application of the phrase “reasonable”, as in “what is
reasonable in the circumstances”, is not unconstitutionally vague (Canadian Foundation).
• More recently, the SCC has added the following qualification to the vagueness test in Nova Scotia Pharmaceuticals: “A
court can conclude that a law is unconstitutionally vague only after exhausting its interpretive function. This requires
considering prior judicial interpretations of the provision, the legislative purpose of the provision, its subject matter and
nature, societal values and related legislative provisions” (Levkovik).

Test for Whether a Law is Unconstitutionally Vague:
1. Exception: A law in which criminal culpability turns on the scope or application of the phrase “reasonable”, as in “what is
reasonable in the circumstances”, is not unconstitutionally vague (Canadian Foundation)
2. It does not “sufficiently delineate any area of risk” [of prosecution/criminal culpability] & thus can provide neither (a)
fair notice to the citizen nor (b) a limitation of enforcement discretion, AND (s.7 Charter, Nova Scotia Pharmaceuticals)
3. i. It lacks a “solid core of meaning” or ii. It is “not intelligible” & thus fails to give sufficient indications that could fuel a
legal debate [(a) & (b)] by offering no grasp to the judiciary, AND (s.7 Charter, Nova Scotia Pharmaceuticals)
4. Its interpretive function has been exhausted by considering provision’s: i. Prior judicial interpretations, ii. Legislative
purpose, iii. Subject matter & nature, iv. Societal values & related legislative provisions (Levkovik)
Reasons for Vagueness [(a) & (b)] Doctrine:
1. (a) Fair Notice to the Citizen. (Nova Scotia Pharmaceuticals)
o Citizen must be capable of knowing the law.
2. (b) Limitation of Law Enforcement Discretion. (Nova Scotia Pharmaceuticals)
o A law must not be so void of precision in its content that a conviction will automatically flow from the
decision to prosecute.

II. THE DOCTRINE OF OVERBREADTH:

• Law which is ‘overbroad’ violates a citizen’s “right to liberty” under s.7 and does so in a way which violates “principles
of fundamental justice.”
• Whether a law is broader than necessary to pursue a legitimate government purpose.
• The doctrine of overbreadth comes from the constitution and the case law.
• A law is “overbroad” when it is “sweeping in its potential scope”.
• The SCC has recognized as a ‘principle of fundamental justice’ under s.7 of the Charter that a law with liberty-infringing
consequences cannot be overbroad (Heywood).
• The courts should employ a two-stage test to assess whether a law is overbroad by asking: (1) What is the objective of
the provision? and (2) Are the means chosen necessary to obtain this objective (If not, it is overbroad)? (Heywood).



Test for Whether a Law is Unconstitutionally Overbroad:
• Does the law have liberty-infringing consequences? If yes, continue to step #2. (s.7 Charter, Heywood)
• What is the objective of the provision? AND
• Are the means chosen (see below ‘Reasons’) necessary to obtain this objective? If not, it is overbroad (Heywood)
Reasons for Overbreadth Doctrine: (Heywood)
1. Geographic scope.
2. Temporal aspects (lifetime ban).
3. Number of citizens it encompassed.
4. Notice of the prohibition to the accused.

III. THE DOCTRINE OF STRICT CONSTRUCTION /
INTERPRETATIVE PRINCIPLES IN CASES OF UNCERTAINTY:

• Most of the time, criminal laws are interpreted like any other statute, but because they affect freedom, the custom is
that they should be interpreted in favour of the accused.
• The doctrine of strict construction comes from the common law.
• Traditionally, the common law “doctrine of strict construction” applied in criminal cases involving an ambiguous law. It
held that where a case turned on a provision that offered two or more possible readings, more or less favourable to the
accused, the court should apply the one most favourable to the accused.
• The traditional doctrine was further qualified in Paré when the SCC held that where a provision is ambiguous, lending
itself to one or more meanings, only one of which may be helpful to the accused, the court should interpret it in a
manner consistent with the larger purpose or objective of the statute and thus, not strictly.
• However, in Bell ExpressVu, the SCC held that where there are two or more reasonable interpretations of a statutory
provision, each consistent with the larger purpose of the statute, the court may apply the doctrine of strict construction.

(Regina v. Nova Scotia Pharmaceutical Society)
Facts: Issue:
• Accused charged with conspiring to • What wording of the law can be determined as vague?
lessen or "unduly threaten" competition Ratio:
in the sale of drugs. Moved to quash by • Where a law is so vague the wording must be so confusing that one cannot even have a
claiming grounds charged violated s.7 in legal debate about what it means, violating s.7 of the Charter thus violating fundamental
terms of vagueness. justice.

(Canadian Foundation for Children Youth, & the Law v. Canada (Attorney General))
Facts: Issue:
• s.43 of the Criminal Code • Is the word “reasonable” in a law too vague?
authorizes the use of force “by Ratio:
way of correction towards a • A law in which criminal culpability turns on the scope or application of the phrase “reasonable”, as
pupil or child…if the force does in “what is reasonable in the circumstances”, is not unconstitutionally vague
not exceed what is reasonable • If a law is sufficiently narrow & well-defined enough it is not unconstitutionally vague
under the circumstances.” • Where it applies, the courts may use international law for specific interpretations of the Criminal
Code.

(R. v. Levkovik)
Facts: Issue:
• Bag containing remains of female child delivered at or near full • Were the words “died before…birth” in s.243 of the Criminal
term found on balcony of accused’s apt. Code unconstitutionally vague?
• Accused claimed she fell, went into labour, had stillbirth. Ratio:
• Accused charged under s.243 Criminal Code for concealing the • A court can conclude that a law is unconstitutionally vague only
dead body of a child. Under the definition of the offence, had after exhausting its interpretive function. This requires
always been immaterial whether child died before, during or after considering prior judicial interpretations of the provision, the
birth. legislative purpose of the provision, its subject matter and
• Accused challenged s.243 vagueness of wording which criminalizes nature, societal values and related legislative provisions.
disposing dead body of child, whether child died before, during or • SCC found s.243 constitutional; the words “child died before
after birth. She claimed it was unclear as to when a fetus falls birth” were not vague as they were limited to cases where the
within definition of “child died before...birth”. She asserted such fetus at or near full term was likely to have been born alive and
vagueness of pre-birth application of s.243 violated her s.7 Charter thus was a “child” under s.243
right to liberty & security.

 (R. v. Heywood)
Facts: Issue:
• s.179(1)(b) Criminal Code makes it an offence for a • Is the law of s.179(1)(b) of the CC that was used to charge Heywood
person with past sex conviction to be ‘found unconstitutionally overbroad?
loitering in or near a school ground, playground, Ratio:
public park or bathing area’. • The law is indeed too broad and is therefore found unconstitutional.
• Man with past sex convictions against children was • In determining whether a law is overbroad the courts will look at whether the
charged for being near a playground. means are necessary to achieve the provision’s goal

(R. v. Paré)
Facts: Issue:
• Accused killed 7 year old boy after • Do the words “while committing” require that the murder happen at the very moment (at
sexually assaulting him to prevent him the same time) the accused is committing the incidental act? NO. There was no
from telling mother about the assault. parliamentary intent to establish “while committing” as being at the same time
• Courts could not decide how to Ratio:
interpret the phrase “while • If two or more interpretations consistent with Parliamentary intent, then courts will choose
committing” wrt s.231(5): definition of the one that favours the accused (Strict Construction)
st
1 degree murder • An understanding of why Parliament has chosen to impose exceptional penalties for the
st
• Conviction of 1 degree murder st
offence and why this class of murder is elevated to 1 degree murder is necessary when
because the murder was committed interpreting the statute. Thus, parliamentary intent of “while committing” allows for small
“while committing” an incidental act. pauses b/w actions.

(Bell ExpressVu Limited Partnership v. Rex)
Facts: Issue:
• Bell ExpressVu requested in part • Does s.9(1)(c) of the Radiocommunication Act prohibit the decoding of all encrypted satellite
an injunction prohibiting Rex signals?
from assisting resident Ratio:
Canadians in subscribing to & • The SCC approved of the Modern Approach to stat interpretation as formulated by Drieger:
decoding US direct-to-home “Today there is only one principle or approach, namely, the words of an Act are to be read in their
programming. entire context and in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.”
• It is only when genuine ambiguity arises between two or more plausible readings, each equally in
accordance with the intentions and larger purpose of the statute, that the courts need to resort to
external interpretive aids, including other principles of interpretation such as the doctrine of strict
construction of penal statutes and the “Charter values” presumption.

 Search and Seizure [s.8 of the Charter]

s.8 – SEARCH OR SEIZURE: Everyone has the right to be secure against unreasonable search and seizures.
s.24(1) – ENFORCEMENT OF GUARANTEED RIGHTS AND FREEDOMS: “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 a remedy as the
court considers appropriate and just in the circumstances.”
s.24(2) – EXCLUSION OF EVIDENCE BRINGING ADMINISTRATION OF JUSTICE INTO DISREPUTE: “Where...a court concludes that
evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, 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.”

I. REP REASONABLE EXPECTATION OF PRIVACY &
II. RPG REASONABLE PROBABLE GROUNDS FOR A SEARCH & SEIZUARE:

STEP-BY-STEP ANALYSIS OF A s.8 ISSUE TO ASSESS VALIDITY OF A SEARCH
• s.8 of the Charter guarantees that “everyone has the right to be secure against unreasonable search or seizure”.
• In Hunter v. Southam, the Supreme Court held that the purpose of s.8 is to protect a person’s right to a “reasonable
expectation of privacy”, and that a search or seizure on the part of the state only engages s.8 if there is an REP in the thing or
place searched or seized.
• Thus, s.8 only applies where the Court finds a reasonable expectation of privacy. If a person has an REP in the thing or place
search or seized, the question under s.8 is whether the search or seizure was reasonable, but it is important to note that s.8
does not protect us from all searches by the state, but only from unreasonable ones (Hunter). Where the court does find a
reasonable expectation of privacy, a search can still be conducted if it meets the requirements for a lawful search set out in
Hunter v. Southam and other cases such as R. v. Collins which added a final requirement that the search must be conducted
in a reasonable manner.
Test for Reasonable Expectation to Privacy: (For Search and Seizure) (Hunter)
1. Did the police seize or search a person or thing?
o Evans Test for Search: (Evans)
1. What constitutes a search under s.8 is set out in R. v. Evans. Anything done as an ‘investigative
technique’ or with an investigative purpose that intrudes upon an accused person’s REP.
• If YES, move to step #2 and step #3.
• If NO, no search or seizure conducted. Analysis Over
2. Does the person have a reasonable expectation of privacy (REP) in the place or object searched or seized, in
consideration of the type of privacy interest at stake?
o CHECK CHART BELOW FOR CASE PRECEDENTS AND CITE IF THERE ARE ANY
• Personal Privacy (bodily integrity, strip search, DNA: hair follicles/blood/saliva/etc.) = Very High EP (Stillman)
• Property/Territorial (Place/Thing) Privacy (home, hotel suite, etc.) = High EP (Wong)
o Wong Test for REP (Place/Thing): In Wong, the court held that whether we have an REP in a place/thing
depends in a general sense on whether “by the standards of privacy that persons can expect to enjoy in
a free and democratic society” state agents would have been expected to be required to obtain a
warrant or some form of prior authorization. The fact that an item or place is used for an illicit purpose
does not preclude there being an REP in it. The question is thus normative rather than descriptive.
1. Does the person have ownership or control of the property?
2. Was the person present at the time of the search?
3. Was the property in a public or private place?
4. Was the public indiscriminately invited such that no reasonable person would expect privacy?
• Informational Privacy (bio core, personal info, electricity records, heat signatures) = Lower EP (Not highly
invasive) (Plant, Tessling)
3. Step #2 is by no means an exhaustive list of relevant factors. The court will also look at the “Totality of the
Circumstances”:
• Edwards Test for REP in “Totality of the Circumstances” – Territorial Privacy (Space or Place): (Edwards)
A primary test for REP (applicable mainly, though not exclusively, to determining an REP in a space or a place) is
set out in R. v. Edwards. The court held that whether there is a REP is to be determined by assessing the
“totality of the circumstances”, including:
 o Presence at time of search
o Possession or control of property or place
o Ownership of the property or place
o Historical use of the property or item
o Ability to regulate access, including the right to admit/exclude others from the place
o Does the claimant have a subjective expectation of privacy in the subject matter, and Is the expectation
objectively reasonable?
1. Place where the search occurred.
2. Subject matter in public view.
3. Subject matter had been abandoned. (Patrick)
4. Information already in the hands of third parties, if so, subject to an obligation of
confidentiality?
5. Police technique intrusive in relation to privacy interest.
6. Use of surveillance technology itself was objectively reasonable
7. Expose any intimate details of the claimant’s lifestyle and personal choices, or information of a
biographical nature.
• Plant Test for REP (Informational): (Plant)
The test for REP relating primarily to “information” forms of privacy was set out in R. v. Plant and involves an
assessment of whether the thing being searched reveals a “biographical core of personal information”, which
would include “information which tends to reveal intimate details of the lifestyle and personal choices of the
individual”.
o If material searched/seized discloses something pertaining to one’s “biographical core”, this mitigates in
favour of finding an REP.
o If not, other factors that weight in favour of finding REP include:
1. Nature of information
2. Relationship of party revealing the info and party asserting confidentiality
3. Place the info was obtained
4. Manner in which the info was obtained
5. Seriousness of the crime being investigated
• Cole Test for REP (Thing/Informational): (Cole)
o What was the subject matter searched or seized?
o Does the claimant have a direct interest in the subject matter?
• From the cases we have reviewed above, we can see that the court considers a broad range of circumstances in deciding
whether there is a reasonable expectation of privacy. On balance of the assessment of step #2 and step #3, is there a
reasonable expectation to privacy?
• If YES = Assess reasonableness and validity of search and seizure through Hunter Test (Warranted) and Collins
Test (Warrantless).
• If NO = No reasonable expectation to privacy. No Charter challenge.
o Exception: The court in Hunter held that in some instances, the requirement for the standard of
“reasonable and probable grounds to believe” and/or the requirement for a form of pre-authorization (a
warrant) may be inappropriate. Thus, a law authorizing (or a court decision to carry out) a warrantless
search and/or a search on a lower standard than “probable grounds to believe” may be reasonable
under s.8 in the context of the criminal law depending on how the court assess the balance of interests
at issue.
• Therefore, for reasons of this exception, I will assume that I am wrong about having found no
REP, I will continue on in my analysis by assessing reasonableness and validity of search and
seizure through either (or both) the Hunter Test for warranted search and seizure and the Collins
Test for warrantless search and seizure. [GO BACK TO CHOICE “IF YES”]
Hunter Test: (WarrantED Search and Seizure) (Hunter)
• In Hunter, the Supreme Court held that in order to be ‘reasonable’ under s.8, a search (carried out in practice) or a
law that authorizes a search in the context of a criminal investigation will be one that meets three requirements: It
will be carried out pursuant to a warrant, the warrant will be issued by an independent decision-maker acting
judicially, and it will be issued on the standard of reasonable and probable grounds to believe than an offence has
been committed and evidence is likely to be found in the place to be searched.


 1. Was there prior authorization (i.e. a warrant)?
i. Was the warrant issued on valid grounds (RPG to believe an offence was committed and evidence was
likely to be found)? and
ii. Whether the search exceeded the lawful scope of the warrant or other statutory powers relating to the
execution of the warrant (i.e. s.489 of the CC)?
• If YES, move to step #2.
• If NO, search is warrantless. [SEE ‘i’ NOTE UNDER STEP #3 “NO”] Move to Collins Test.
2. Was the decision to authorize made by an independent, impartial third party decision-maker? (i.e. Judge)
i. Of note, s.487 of the Criminal Code and s.11 of the Controlled Drugs and Substances Act set out
provisions for authorizing a warrant in criminal cases, which have been held to conform to the Hunter
requirements.
• If YES, move to step #3.
• If NO, search is warrantless. [SEE ‘i’ NOTE UNDER STEP #3 “NO”] Move to Collins Test.
3. Was the standard of justification sufficiently strict? (ie. RPG / reasonable grounds)
• If YES, the search and seizure is warranted under the standard of “reasonable and probable grounds to believe”
and valid.
i. Therefore, a search with a warrant issued under a legal framework that meets the Hunter criteria would
satisfy the first two parts of the Collins Test for warrantless search and seizure, leaving the third
question of the Collins Test of whether the actual search was carried out in a reasonable manner.
• If NO, search is warrantless. Move to Collins Test.
i. The court in Hunter also held that a warrantless search is prima facie unreasonable, but may still be
reasonable under s.8 in some circumstances. Later cases such as Collins establish a framework under
which a warrantless search may still be reasonable if the Crown can demonstrate, on a balance of
probabilities, that it was carried out under exigent circumstances, pursuant to other common law power
or statutory authority, or with consent.
• Exceptions to Hunter Test Requirements Recognized by the SCC: The SCC has indicated that certain departures from the
standards for a reasonable search set out in Hunter may be permitted,
1. Where a person’s EP was relatively low, and
i. The form of search being authorized is not highly invasive, and
ii. The state interest is substantial,
a. Then it may be reasonable NOT to require either a warrant or the RPG standard or both
(i.e. sniffer dogs, roadside stops), because in these cases the court has permitted
warrantless searches and/or searches on a standard of something less than “probable
grounds” (usually “reasonable suspicion”). We will explore examples of this in Step #1 of
the Collins Test.
2. Where a person’s EP was extremely high (i.e strip searches or body cavity searches), then s.8 may require
something more than simply a RPG to believe that evidence will be found, i.e.:
ii. Safety of officers and/or other persons, combined with
iii. Exigent circumstances (Golden)
o Thus, if there is an REP in a thing searched, and a warrantless search was carried out, the search might still be
“reasonable” under s.8, if it is authorized by another law held to be a permissible exception to the basic
standards set out in Hunter.
Collins Test: (WarrantLESS Search and Seizure) (Collins)
• The Supreme Court in Collins held that a search will be reasonable for the purposes of s.8 if the search was
authorized by law (carried out under authority), the law (authority) is reasonable, and the search is carried out in a
reasonable manner. More specifically, other authority may be found under statute law, or under common law, or
with valid consent. In these cases, courts have held (or might hold) that the common law rule or the statutory
provision at issue constitutes a “reasonable law” for the purposes of s.8 (step #2 of the Collins Test).
1. Search authorized by statutory or common law or valid consent?
o Statutory Law:
1. General provisions in s. 487, 488, 498 of the Criminal Code that deal with searches.
2. In both s.487.11 and s.529.3 of the CC and s.11(7) of the Controlled Drugs and Substances Act,
these statutory provisions state that a PO can carry out a warrantless search if the conditions for
obtaining a warrant under s.487.1 of the CC or s.11(1) of the CDSA exist but due to exigent
circumstances it is not practicable to obtain a warrant.
 3. On lesser grounds in some administrative or regulatory schemes/contexts (which may or may
not involve the prosecution of criminal or quasi-criminal offences) including border control,
legislation authorizes a warrantless search. This has been upheld under s.8 given the lower
expectation of privacy in those contexts and a substantial state interest in enforcing the
regulatory regime at issue.
• If there is other authority, a court would ask whether the search fell within the scope of that
authority (i.e. if it required reasonable suspicion, did the officer I this case have reasonable
suspicion, or was It mere suspicion?)
o Common Law:
1. Authority may be found under common law via ancillary police powers which allow for a
warrantless search upon arrest or detention, such as:
a. Searches incident to lawful arrest.
(Cloutier)
b. Frisk search a person as part of investigative detention.
(Mann)
c. Enter and search dwelling if in lawful pursuit of a suspect.
d. Enter and search a dwelling to preserve life or prevent injury.
e. Enter and search a dwelling to make an arrest incident to an arrest warrant.
2. Common law also allows for warrantless searches in exigent circumstances.
(Grant)
3. Finally, authority may also be found under common law to conduct a warrantless sniffer dog
search in a public place of a person, luggage, locker or sealed item based on lesser grounds than
RPG, such as reasonable suspicion. If Sniffer Dogs: [SEE SNIFFER DOG TEST] (Kang-Brown, A.M.)
• If there is other authority, a court would ask whether the search fell within the scope of that
authority (i.e. if it required reasonable suspicion, did the officer I this case have reasonable
suspicion, or was It mere suspicion?)
o Valid Consent was given:
1. What was the scope of the consent?
2. Was it unequivocal consent?
3. Did the search exceed the scope of the consent?
• If YES, move to step #2.
• If NO, Search Invalid.
2. Authorizing law reasonable?
• If YES, move to step #3.
• If NO, Search Invalid.
3. The third part of Collins asks whether the practical, physical manner in which the authorized, warrantless search was
carried out carried out reasonably?
o Examples of authorized searches carried out unreasonably include:
1. A strip search of a woman in the middle of a busy restaurant by three male officers
2. A case where officers have a warrant to search a residence and use a “hard” or “dynamic” entry
method rather than knocking, not because they have safety concerns but because of a blanket
policy by the policy force in question
3. And the case of Collins itself, where the officer had grounds for the search of the accused but
lunged at her with excessive, unreasonable force
• If YES, warrantless search and seizure is valid.
• If NO, Search Invalid.
o As none of these exceptions the Hunter Test applies (or the search does not conform to any of them),
the search was unreasonable and violates s.8, giving rise to the question of whether the evidence should
be admitted or excluded under s.24(2) of the Charter, or other remedies under s.24(1).
1. [SEE STEP-BY-STEP ANALYSIS OF A s.24(2) ISSUE]
2. s.24(1) – “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 a remedy as the court
considers appropriate and just in the circumstances.”



 TYPE OF PRIVACY YES REP NO / LOWER REP
Personal Stillman: REP in your own bodily samples Patrick: No REP in garbage bags left for collection at
(blood, saliva, hair, etc.) the edge of one's property.
House Feeney: REP in private dwelling house Edwards: No REP in girlfriend's apartment
Gomboc: REP in information as to electricity Tessling: No REP in heat pattern radiating from house
usage captured by a DRA Plant: No REP in hydro/electricity records of house
Place of Business Hunter v. Southam: REP against search and Thomson Newspaper Ltd: Distinguished from Hunter
seizure of business records v. Southam in regard to an order to produce business
records (as opposed to an entry and search)
Car Belnavis: Owner/operator has REP in closed Belnavis: No REP in the contents of the car where the
areas (glove compartment/trunk etc.) accused is merely a passenger in the car
Mackenzie: Motor vehicles are places in which
individuals have a lower REP against sniffer dog search
Public Place Buhay: REP in rented locker in bus depot R. v. M.(M.R.): Lower REP for high school students re
backpacks, lockers etc. (i.e. search by school officials
without warrant based on reasonable suspicion)
R. v. Kang-Brown, R. v. A.M.: Lower REP against dog
sniffing in bus depot and school (i.e. warrantless
sniffer dog search based on reasonable suspicion)
Surveillance Wong: REP that police will not surreptitiously LeBeau and Lofthouse: No REP (even though guards
video surveil the accused's hotel room where posted) for sexual activity by persons in a public
he has invited strangers to come and gamble washroom
Communications Duarte: REP that private conversations will
not be electronically intercepted

III. RPG OF SNIFFER DOG TEST FOR SEARCH & SEIZURE:

Legal Issue: (Kang-Brown, A.M.)
• Under what circumstances are the police entitled to conduct sniffer-dog searches of an individual and their
belongings?

Sniffer Dog Test: (Search and Seizure with Sniffer Dogs)
1. Does the accused enjoy a reasonable expectation of privacy in the items sniffed?
• Apply Reasonable Expectation to Privacy Test. (Hunter)
o If answer is YES = Move to step #2. No warrant is required.
o If answer is NO = No reasonable expectation to privacy. No Charter challenge.
2. Did the police have reasonable grounds to suspect (reasonable suspicion) presence of contraband? (Kang-Brown, A.M.)
• “Totality of the Circumstances” is taken into account and it is based on the “Constellation of Facts.” (Chehil)
§ Accuracy of particular sniffer-dog.
§ Based on evidence tied to the individual.
a. More general the evidence, the more need for specific evidence regarding police officer
experience and training.
§ Must have objective basis to it and not only subjective educated guess (Mackenzie)
a. Reasonable suspicion can be judged upon thru eyes of reasonable person armed with
the knowledge, training, experience of the investigating officer.
o If answer is YES = Sniffer-dog search is valid. Compliant with s.8 Charter rights.
o If answer is NO = Sniffer-dog search is not valid. Proceed to Grant Test #1: (Exclusion of Evidence).

(Hunter v. Southam Inc.) – PLACE OF BUSINESS: YES REP (against SS of business records); [Hunter Test] WarrantED SS
Facts: Issue:
• Challenge of a stat provision authorizing a warrant • Is the statute authorizing search and seizure constitutionally
• Govt began investigation into Southam Newspaper under authority of valid? YES, warranted SS
Combines Investigation Act. Investigators entered Southam's offices in Ratio:
Edmonton and elsewhere to examine documents. Search was • Hunter Test: Validity pursuant to s.8 requires the stat
authorized by the CI Act prior to the enactment of the Charter but the enactment to provide prior authorization (warrant) [all
search did not commence until afterwards. warrantless searches are prima facie unconstitutional unless
• Alberta Court of Appeal judge found that part of CI Act was
 inconsistent with the Charter (warrantless) and therefore of no force not feasible to obtain], be authorized by a person
or effect. SCC considered s.8 for the 1st time; upheld the ruling of the independent/impartial, and the std for authorizing the
Court of Appeal. warrant must be sufficiently strict / have reasonable
grounds.

(R. v. Stillman) – PERSONAL: YES REP (in your own bodily samples, i.e. blood, saliva, hair, etc.)
Facts: Issue:
• A young New Brunswick girl was found raped and murdered. A • Can police extract bodily samples on arrest w/o warrant or
17-year-old suspect, William Stillman, was arrested for the consent, or is there a REP?
murder. Stillman's lawyer told the police that he did not consent Ratio:
to the taking of any bodily samples. Nevertheless, the police • Accused has a reasonable expectation of privacy in his bodily
took an impression of his teeth, a hair sample, and saliva sample. samples.
As well, they took a paper tissue used by Stillman who had • Common law power for search and seizure after arrest cannot be
thrown it into the garbage while in custody. Ex-leading SCC so broad to allow bodily samples (dental impressions, buccal
decision on s.24(2) before Grant replaced. swabs).

(R. v. Wong) – SURVEILLANCE: YES REP (that police will not surreptitiously video surveil the accused’s hotel room where he
has invited strangers to come and gamble)
Facts: Issue:
• Accused charged with keeping a common • Did Wong have a REP of being video’d in his hotel room for illegal activity?
gaming house; indiscriminately invited members • In light of invitation to public, and illicit purpose, did he still have REP in room?
of public through notices in restaurants/bars.
Crown sought to introduce a videotape of Ratio:
gambling conducted in a Toronto hotel room. • The EP which normally exists with respect to a hotel room will not be
• Trial judge excluded the tape under s.24(2), circumscribed by the fact that illegal activity may be taking place in the room, nor
saying it was obtained in violation of s.8 of the will it necessarily be waived by the mere fact that others have been invited to the
Charter. room.
• Court of Appeal reversed trial court decision the • But, by indiscriminately, extending invitations to the gaming session which was to
ground that the accused had no reasonable take place in the hotel, by passing out numerous notices in public restaurants and
expectation of privacy in the circumstances. bars, thereby inviting the public into the hotel room, it is impossible to conclude
that a reasonable person would expect the privacy in these circumstances.

(R. v. Plant) – HOUSE: NO REP (in hydro records of a house)
Facts: Issue:
• Police were accessing hydro • Did the accused have a reasonable expectation of privacy in the hydro-records of his home? NO
records without a warrant. Ratio:
• s.8 protects biographical core of personal info which ppl in a free/democratic society would wish to
maintain/ctrl from state dissemination, i.e. intimate details of lifestyle & personal choices. ID’d 4 diff
factors to determine if s.8 to be used re: access of info by police (see Plant Test above)

(R. v. Tessling) – HOUSE: NO/LOWER REP (in heat pattern radiating from house)
Facts: Issue:
• Warrantless, Police used thermal imaging device to take a “heat” • Did police use of device and gathering of heat sig info violate s.8?
picture of the respondent’s home from an overhead aircraft. NO, info emanating from home = v. low REP
• Heat image along with other evidence caused police to infer home Ratio:
was a grow op. Police then obtained warrant; found lots of pot. • S. 8 protects people, not places. Info from “heat” tech non-
• Respondent claimed “heat” picture of home constituted a search intrusive (info on home, not person): no touch “biographical core
of his home without a warrant, therefore in violation of s.8. of personal info”, nor reveal intimate details of their lifestyle.

(R. v. Edwards) – HOUSE: NO/LOWER REP (in girlfriend’s apartment)
Facts: Issue:
• Edwards was suspect of drug dealing. Thought he was • Does a person have a reasonable expectation of privacy in their partner’s
keeping drugs at home of girlfriend. Police arrested him home? NO
on traffic offence. Officer said half-truths to girlfriend. Ratio:
She let them into apt. Showed then to the drugs. • WRT territorial privacy, any REP depends on the Edwards “Totality of the
Identified him at police station. Circumstances Test” which includes the list as per the Edwards Test above.





(R. v. Patrick) – PERSONAL: NO/LOWER REP (in garbage bags left for collection at the edge of one’s property, i.e.
abandonment)
Facts: Issue:
• Police suspected Patrick was operating an ecstasy lab at • What REP in garbage bags left for collection? Had Patrick abandoned all
home, seized garbage bags he had deposited for collection privacy interests when he placed the bags out for garbage pickup in the
in back alley. alley?
• They did not have to go onto Patrick’s property, but had to Ratio:
reach over across his property line to retrieve the bags. • Patrick abandoned his privacy interests in the contents of the bag when
• Police obtained evidence from the bags, which they then he paced the bags for collection in a location in which any member of
used to acquire a search warrant for the house. the public had access to, and “sufficiently abandoned his interest and
• Patrick argued his s.8 right had been violated due to an control to eliminate any objectively reasonable privacy interest”.
unreasonable SS, said he retained privacy interests in • The “totality of circumstances” includes the needs to balance individual
bags’ contents and police searched them without a privacy rights with effective law enforcement and reckoning with the
warrant. long-term consequences for the due protection of privacy interest in our
• Trial judge found he did not have REP in bags; SCC agreed. society.

(R. v. Cole) – LAPTOP: YES REP (in materials on a laptop)
Facts: Issue:
• Accused HS teacher charged with possession of child porn & • Is there a REP to materials on a laptop? Did police violate s.8?
unauthorized use of computer (allowed to use work laptop for Ratio:
incidental personal purposes only) • The closer the subject matter is to individual’s biographical core,
• While doing computer maintenance on Cole’s laptop, a tech found the more REP there will be. Cole had a REP in the material on
nude / partially nude pictures of female student. Principle notified; the computer, police infringed his s.8 rights by viewing and
pics copied to discs. Schoolboard gave laptop/discs directly to copying the info. Totality of Circ Cole Test (see above).
police. Warrantless, police went onto laptop, obtained evidence.

(R. v. Collins) – [Collins Test] WarrantLESS SS
Facts: Issue:
• 604 RCMP Drug Squad had Ruby Collins under surveillance as part of an • Under what conditions can a warrantless search be
investigation into a "heroin problem". No warrant. A PO approached her in pub, reasonable without violating s.8 rights?
ID’d himself, then grabbed her by throat and thus dragged her down to floor via Ratio:
"throat hold" used to prevent suspects from swallowing drug filled balloons. PO • All warrantless searches = prima facie
then told her to let go of heroin filled balloon she had in hand; she did. Collins unreasonable. Burden on Crown to show search is
then arrested for drug possession. Leading SCC decision on s.8. Ex-leading SCC reasonable once accused shows Charter rights
decision on s.24(2) before Grant replaced. infringed
• Collins 3-Test for reasonableness of warrantless SS:
auth by law, law reasonable, manner reasonable.

(Kang-Brown) – PUBLIC PLACE: NO/LOWER REP (against dog sniffing in bus depot and school, i.e. warrantless SNIFFER DOG
search based on reasonable suspicion)
Facts: Issue:
• Undercover RCMP officer involved in program to catch drug • Under what circumstances are the police entitled to conduct
couriers at bus stations. Accused gave officer a long stare and was Sniffer Dog searches of an individual and their belongings?
glancing over his shoulder at officer while exiting bus into lobby. Ratio:
Officer found behavior suspicious. • Accused enjoyed sufficient expectation of privacy in their bag to
• Officer approached accused, ID’d self, told accused he was trigger s.8. Did not meet REP std. Evidence excluded via s.24(2).
allowed to leave at any time, asked if he had drugs on him and if • Police are entitled to perform Sniffer Dog searches without a
could look into his bag. Accused, after starting to unzip bag, pulled warrant on basis of reasonable grounds to suspect presence of
it away in a nervous manner. Officer called for Sniffer Dog, who contraband (generalized suspicion not enough; must be
signaled there were drugs inside bag. Accused arrested and drugs reasonable suspicion).
found in bag.

(A.M.) – PUBLIC PLACE: NO/LOWER REP (against dog sniffing in bus depot and school, i.e. warrantless SNIFFER DOG search
based on reasonable suspicion)
Facts: Issue:
• HS Principal suspects drugs, invited police to bring Sniffer • Under what circumstances are the police entitled to conduct sniffer-dog
Dogs into school to search for drugs. searches of an individual and their belongings?
• On the day in question, neither Principal nor police had Ratio:
reason to believe drugs were present in school. • Accused enjoyed sufficient expectation of privacy in their bag to trigger
• While in gym, Sniffer Dog sniffed out a backpack, alerted s.8. Did not meet REP std set out in Kang-Brown. Evidence excluded via
officer. s.24(2).
• Bag contained drugs as well as student A.M.’s wallet; • Police are entitled to perform Sniffer Dog searches without a warrant on
charged with possession for the purpose of trafficking. basis of reasonable grounds to suspect the presence of contraband
(generalized suspicion not enough; must be reasonable suspicion).

(R. v. Chehil) – PUBLIC PLACE: NO/LOWER REP (against dog sniffing in airport after constellation of factors, i.e. warrantless
SNIFFER DOG search based on reasonable suspicion)
Facts: Issue:
• Police suspected accused was • What factors constitute “reasonable suspicion” for the circumstances when police can use a
trafficking drugs b/c of following sniffer-dog? Here police did have reasonable susp; search was Charter-compliant
indicators: Ratio:
o Purchased one-way ticket. • Characteristics that apply broadly to innocent people are insufficient, as they are markers
o Paid in cash; checked 1 bag. only of generalized suspicion. The same is true of factors that may “go both ways,” such as
o One of last passengers to an individual’s making or failing to make eye contact. On their own, such factors cannot
purchase ticket. support reasonable suspicion, however this does not preclude reasonable suspicion arising
o Travelling alone, late at when the same factor is simply one part of a constellation of factors.
night. o Constellation of facts must be based in the evidence, tied to the individual and
• Police used Sniffer Dog to check his capable of supporting a logical inference of criminal behavior.
luggage which gave positive for drugs. o The more general the constellation relied on by the police, the more there will be
• Police searched the bag; found 3kg a need for specific evidence regarding police experience and training.
coke. o Sniff searches based on reasonable susp = minimually intrusive: s.8 compliant

(R. v. MacKenzie) – CAR: LOWER REP (against dog sniffing in motor vehicle, i.e. warrantless SNIFFER DOG search based on
reasonable suspicion)
Facts: Issue:
• Accused got pulled over during highway traffic stop. • Did the police have reasonable grounds to suspect the
• Police used Sniffer Dog to search car for drugs b/c found reasonable appellant was involved in an offence to warrant a search? Was
susp std in: reasonable susp std to use sniff met?
o Erratic manner of driving, high level of nervousness, Ratio:
pinkish hue of eyes, his course of travel & contradictory • Police officer’s reasonable suspicion must have objective basis
answers re: his travel dates. to it and not only subjective educated guess. Reasonable susp
• Accused seeks to have the sniff deemed unconstitutional and for can be judged upon thru eyes of reasonable person armed w/
exclusion of evidence (pot discovered in his car) the knowledge, training, experience of the investigating
officer.


 Arrest & Detention [s.9, s.10(a), s.10(b) of the Charter]

s.9 – DETENTION OR IMPRISONMENT: Everyone has the right not to be arbitrarily detained or imprisoned.
s.10 – ARREST OR DETENTION: Everyone has the right on arrest or detention
• (a) to be informed promptly of the reasons therefore;
• (b) to retain and instruct counsel without delay and to be informed of that right.

I. GENERAL POINTS ON THE LAW OF ARREST & DETENTION:

• s.9 of the Charter guarantees everyone a right “not to be arbitrarily detained or imprisoned”.
• An arrest or detention is arbitrary under s.9 if it is not authorized by law, or if the law under which it is authorized is
itself arbitrary or unreasonable (Grant). A search premised upon an arbitrary (unlawful) arrest or detention will violate
s.8.
• Police may question, but if not detained or under arrest, people are free to refuse to cooperate (including ID, unless
there is a legal requirement to provide this) (Grant, Suberu).
• A police officer (PO) may detain a person briefly for investigative purposes where the officer has a reasonable suspicion
tying the individual to an offence and where it is reasonably necessary on an objective view of the totality of the
circumstances (Mann). Police have authority to carry out a limited search incident to detention where there are
reasonable grounds to suspect safety is at risk. Investigative detention engages rights under both s.10(a) & s.10(b).
• A PO may arrest on grounds set out in s.495(1) of the Criminal Code and in certain other situations (under statute and
common law: e.g., breach of the peace under s.31 of the CC and at CL: Hayes v Thompson). Police have authority to
carry out a frisk search incident to arrest without requiring further grounds. A strip search upon arrest requires
additional grounds, and a strip search at the scene of arrest requires grounds in addition to those.
• The common law makes the following distinctions on the different standards that apply in this context: Suspicion would
be something possible, even if its probability was low. A ‘reasonable suspicion’ would be a reasonable possibility, which
is not quite probable but more than hypothetical (Kang-Brown, Chehil). ‘Reasonable grounds to believe’ or ‘reasonable
belief’ have been held by the SCC in Debot to be synonymous with ‘reasonable and probable grounds,’ and each is a way
of saying there is a reasonably probability of something; and ‘balance of probability’ means greater likelihood or ‘more
likely than not’.
• Coughlan reads the SCC decisions in Debot, Storrey, and Baron v. Canada as authority for the proposition that RPG
means balance of probabilities or ‘more likely than not’. But the cases do not state this explicitly. They say RPG equals
reasonable probability and this is less than a ‘prima facie case for conviction.’ The precise level of certainty for RPG
remains unclear, and Can v Calgary (Police Service) is an example of a recent court outlining the state of this
uncertainty.

II. GROUNDS FOR ARREST + ARREST POWERS IN PART XVI OF THE CRIMINAL CODE:

• Pursuant to s.495(1) of the CC, a PO may arrest a person where the officer has reasonable grounds to believe that an
individual is subject to an arrest warrant, or has committed or is about to commit an indictable offence, or if she finds an
individual committing any offence. Where the officer has grounds to arrest, he or she may also carry out a limited search
incident to arrest without a warrant or further grounds.
• Persons other than peace officers may arrest without a warrant anyone they find committing an indictable office, or
anyone they have reasonable grounds to believe has committed a summary or indictable office and is being freshly
pursued by someone with lawful authority to arrest (s.494).
• A PO or civilian may use as much force as is reasonably necessary to effect a lawful arrest (s.25(1) of the CC).
• Under s.529.3(1), police may enter a dwelling house without a warrant in order to carry out an arrest where they have
reasonable grounds to believe the person is present and the conditions are present to obtain a warrant under s.529.1
(RPG) but due to exigent circumstances this is not practicable. For the purposes of this section, exigent circs are defined
by s.529.3(2) to require (a) reasonable grounds to suspect that it is necessary to prevent imminent danger of bodily
harm or death, or (b) reasonable grounds to believe that entry is necessary to prevent against the imminent loss or
destruction of evidence of an indictable offence.
• For a range of offences set out in s.495(2) [summary, hybrid, and offences under s.553], police may release a person
immediately after “arrest” (or in lieu of carrying out a full arrest) if detaining them further is not necessary for any of the
“public interest” reasons set out in s.495(2) (ID, evidence, avoiding continuation/repetition of offence, or to ensure
 court attendance).
• If the police do not release a person immediately after arrest, they may do so later under s.497, applying the same test
for ‘public interest’ in s.495(2), plus the consideration of whether detention is necessary to protect a victim or witness.
• Once returned to the station, under s.498, an “officer in charge” may release a person arrested in a wider range of
offences than those set out in s.495(2), including indictable offences punishable by up to 5yrs in prison, applying the
same test as in s.497, but in this case, the officer can impose a more restrictive set of conditions (including a cash
recognizance of up to $500).
• s.503(2.1) allows for ‘police bail’: release on any offence aside from those in s.469 (murder, treason, etc.) on a range of
possible conditions (similar to those imposable by a judge at a bail hearing).
• If a person is not released upon arrest, they must be brought before a justice or a judge within 24 hours or as soon as is
practicable (s.503(1)).

Arrest WITHOUT a Warrant:
Police Officer Arrest:
• Exception: A PO may release a person immediately after the “arrest” (i.e. in lieu of carrying out a full arrest) b/c the PO
shall not arrest w/o a warrant for the following: (s.495(2) of the Criminal Code)
• A range of offences set out in s.495(2): Summary, hybrid and indictable offences under s.553, in any case where
• Test for Public Interest: Detaining them further is not necessary b/c the “public interest” reasons set out in
s.495(2) may be satisfied w/o arresting them:
§ ID, evidence, avoiding continuation/repetition of offence, or to ensure court attendance
• s.495(1), a PO may arrest without a warrant in three situations.
• A person has committed an “indictable offence” or who, on reasonable grounds, the officer believes is about to
commit an “indictable offence”, or
• A person the officer finds committing a “criminal offence”, or
• A person who officer has reasonable grounds to believe is the subject to an arrest or committal warrant.
• s.25(1) of the CC authorizes a PO to use as much force as is reasonably necessary to effect a lawful arrest.
• s.529.3(!) authorizes police to enter a dwelling house without a warrant in order to carry out an arrest where they:
• Have reasonable grounds to believe the person is present. and
• The conditions are present to obtain a warrant under s.529.1 (RPG) but due to Exigent Circumstances this is not
practicable.
§ s.529.3(2) defines Exigent Circumstances as requiring:
(a) Reasonable grounds to suspect that it is necessary to prevent imminent danger of bodily harm
or death, or
(b) Reasonable grounds to believe that entry is necessary to prevent against the imminent loss or
destruction of evidence of an indictable offence.
• s.503, if a person is NOT released upon arrest with or w/o a warrant, they must be brought before a justice or a judge
w/in 24hrs or asap.
Citizen’s Arrest:
• s.494(1) of the Criminal Code authorizes “anyone” to arrest a person who he or she:
(a) Finds actually committing an indictable offence.”
(b) Has reasonable grounds to believe has committed:
(i) A “criminal offence” and
(ii) is freshly escaping and is being freshly pursued by someone with lawful authority to arrest the person.
• s.494(2) authorizes a property owner or person in lawful possession of the property, or a person authorized by the
property owner or person in lawful possession of the property, to arrest a person without a warrant if they find them
committing a criminal offence on or in relation to the property, and
(a) They make the arrest at that time, or
(b) The arrest is made within a reasonable time after the offence is committed and they believe on reasonable
grounds that it is not feasible in the circumstances for a peace officer to make the arrest.
• s.25(1) of the CC authorizes a civilian to use as much force as is reasonably necessary to effect a lawful arrest.
• s.503, if a person is NOT released upon arrest with or w/o a warrant, they must be brought before a justice or a judge
w/in 24hrs or asap.



Release After Custody:
• s.497, a PO who (actually) arrests w/o a warrant for a range of offences set out in s.495(2) shall, asap, release if satisfies:
• Test for Public Interest: Detaining them further is not necessary b/c the “public interest” reasons set out in
s.497(1.1) may be satisfied w/o arresting them:
§ ID, evidence, avoiding continuation/repetition of offence, or to ensure court attendance, and
• s.497(1.1)(iv): is not necessary to protect a victim or witness
• s.498, a PO who (actually) arrests w/o a warrant and brings them back to the station for a wider range of offences,
including those set out in s.495(2), punishable by imprisonment for 5yrs or less, shall, asap, release if satisfies:
• Test for Public Interest: Detaining them further is not necessary b/c the “public interest” reasons set out in
s.498(1.1) may be satisfied w/o arresting them:
§ ID, evidence, avoiding continuation/repetition of offence, or to ensure court attendance, and
• s.498(1): May impose a more restrictive set of conditions including a cash recognizance of up to $500
• s.503(2.1), allows for ‘police bail’, when a PO arrests with or w/o a warrant, which is a release on any offence aside from
those in s.469 or s.522 (murder, treason, piracy, alarming Her Majesty, intimidating Parliament/legislature, inciting a
mutiny, etc.) on a range of possible conditions similar to those imposable by a judge at a bail hearing.

Test for Arrest WITHOUT a Warrant: (R. v. Storrey)
• Arresting officer must subjectively have reasonable and probable grounds on which to base the arrest.
o Reasonable person placed in the position of the officer must be able to conclude that there were indeed
reasonable probably grounds for the arrest.
§ If arrest is VALID = Accused must be informed of s. 10(a) and s. 10(b).
ú 10 (a) = Reasons for Detention or Arrest. (R. v. Mann)
ú 10 (b) = Right to Retain and Instruct Counsel. (R. v. Suberu)
§ If arrest is INVALID = Violation of s. 9.

Test for Arrest WITH a Warrant:
• S. 504 of the Criminal Code permits anyone who has reasonable grounds to believe an indictable offence has been
committed to lay an information under oath before a justice of the peace.
• S. 507 of the Criminal Code provides that a justice of the peace receives such information and where the justice of the
peace considers a case has been made out to compel an accused to answer a charge, shall issue a summons unless there
are reasonable grounds to believe it is necessary to issue a warrant for the arrest of an accused.

III. ANCILLARY POLICE POWERS (AT COMMON LAW):

A.1. Search Incident to Arrest: Frisk, Immediate Surroundings, Distance from Place of Arrest, Things Seized on
Arrest

• At common law, when police carry out a lawful arrest, they also have authority to carry out a brief ‘frisk search’
incidental to arrest without needing separate and additional grounds for the search. This would entail a brief pat down
of clothing, but not the removal of clothing, and it may involve the examination of the content of pockets (Cloutier).
• A search incident to arrest may extend to a person’s immediate surroundings including a bag or the inside of a car in
which a person is found (Cloutier, Caslake). However, this search must be carried out for a “valid objective in pursuit of
the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the
accused or the public, or that may facilitate escape or act as evidence against the accused”. A search incident to arrest
may not be conducted to intimidate or be carried out in an abusive manner (Cloutier).
• A search of things seized upon arrest may also be carried out later in time, or at a distance from the place of the arrest, if
the search is carried out for a valid criminal justice purpose connected to the offence for which the person was arrested
and there is a reasonable explanation for the delay (Caslake).
• Where there is an issue as to whether a search was truly incidental to arrest (whether it was conducted for a criminal
justice objective connected to the offence for which the person was arrested), the court will apply a twofold test. It will
ask (a) whether the officer subjectively carried out the search for a legitimate objective connected to the offence for
which the accused was arrested and (b) whether that objective was reasonable in the circumstances (Caslake).
o For example, in Caslake, the car was searched not to advance a legitimate criminal justice objective, but merely
as part of a police policy to ensure the safekeeping of goods seized. The officer thus lacked a subjective intent to
advance a criminal justice objective. But if he did act with this intention, it would have been objectively
 reasonable, given the clear connection between the reason for the arrest (PPT) and the possibility that drugs
might be found in the car. Conversely, if a person were arrested for shoplifting cigarettes and the officer decided
to conduct a search of the person’s bag because the officer subjectively believed it might contain drugs (acting
on the notion that “the person looked to me like a drug dealer”), the officer’s purpose for the search would not
be objectively reasonable since it would not advance a criminal justice objective connected to the reason for the
arrest.
o (However, please note that in practical terms, it would be necessary for the Crown to establish these two
components only where the accused raised an issue with whether a search was truly incidental to an arrest. It
would not be necessary to establish this two-fold test in every case involving a search incident to arrest.)

Test for Whether Search Truly Incidental to Arrest:
• Arrest must be lawful, and
• Test for “Frisk” Search Incident to Arrest of Person: Can carry out ‘Frisk Search’ incidental to arrest (Cloutier)
• No need for separate and additional grounds for search
• Only entails brief pat down of clothing: CAN examine content of pockets, CANNOT have removal of clothing
• Test for Search Incident to Arrest of Immediate Surroundings: (Cloutier, Caslake)
• Search is not a duty, there is discretion. Case by case scenario.
• Cloutier Test: Search may extend to accused’s immediate surroundings INCLUDING bag or inside car in which
accused was found, and (Cloutier)
1. Search must be for a valid objective.
• Discovery of an object that may threaten the safety of police, public, or accused.
• Discovery of an object that may facilitate escape.
• Discovery of an object that can act as evidence against the accused.
2. The search must not be conducted to intimidate or be in an abusive manner.
• Physical and psychological force must be proportionate to the objectives sought and the circumstances
of situation, and
• Caslake Test: Must be carried out for “valid objective in pursuit of the ends of criminal justice”, for a criminal justice
objective connected to the offence for which the person was arrested: (Caslake)
1. Whether the PO subjectively carried out the search for a legitimate objective connected to the offence for
which the accused was arrested, and
2. Whether that objective was reasonable in the circumstances
• BUT: This test is NOT necessary for Crown to establish UNLESS accused raises an issue whether a search was
truly incidental to arrest
• Test for Search Incident to Arrest of Things Seized 1. Upon Arrest, 2. At a Distance From Place of Arrest, if: (Caslake)
1. Search carried out for a valid criminal justice purpose connected to the offence for which the person was arrested, and
2. If carried out later in time, there is a reasonable explanation for the delay

A.2. Search Incident to Arrest: Strip

• Police are authorized to carry out a strip search following an arrest only where they have (in addition to the grounds for
the arrest itself) ‘reasonable and probable grounds to believe it is necessary to carry out a strip search in the
circumstances of the arrest’ for (a) safety or (b) to prevent evidence from being destroyed (Golden).
• Strip searches should generally be conducted at the police station in accordance with the guidelines set out in R v.
Golden.
• However, police are authorized to carry out a strip search in public or at the scene of the arrest where they can establish
that in addition to having grounds for arrest and grounds for a strip search (described above) there are also reasonable
and probable grounds to believe that there are exigent circumstances to justify it, or to believe it is necessary to carry
out the search at that time and place (for safety or to prevent the loss of evidence) (Golden).

Test for “Strip” Search Conditions: (Golden)
• Must have reasonable and probable grounds to believe it necessary to need to carry out a “strip” search in the
circumstances of the arrest, in addition to the reasonable and probable grounds needed for the arrest, for:
o Safety
o To prevent evidence from being destroyed


 • Golden Rules Test: The guideline of Golden Rules for “strip” searches: (Golden)
o Can the strip search be conducted at the police station?
§ If not, PO authorized to carry out strip search in public or at scene of arrest where they can establish:
• Have reasonable and probable grounds necessary for arrest
• Have reasonable and probably grounds necessary for strip search as above (safety/evidence)
• Have reasonable and probable grounds to believe there are exigent circumstances to justify strip
search not at police station, i.e. Believe it is necessary to carry out the search at that time and
place (for safety or to prevent the loss of evidence)
o Will the strip search be conducted in a manner that ensures the health and safety of all involved?
o Will the strip search be authorized by a police officer acting in a supervisory capacity?
o Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the
individual be searched?
o Will the number of police officers involved in the search be no more than is reasonably necessary in the
circumstances?
o What is the minimum of force necessary to conduct the strip search?
o Will the strip search be carried out in a private area such that no on other than the individuals engaged in the
search can observe the search?
o Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not
completely undressed at any one time?
o Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical
contact?
o If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth),
will the detainee be given the option of removing the object himself or of having the object removed by a
trained medical professional?
o Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?

B. Investigative Detention:

• At common law, police have a power to detain a person briefly for investigative purposes.
• Police may carry out an “investigative detention” when they have (a) a reasonable suspicion that the detainee is
connected to the offence being investigated and (b) where the detention is reasonably necessary on an objective view of
the totality of the circumstances. Factors to consider here include “the extent to which the interference with individual
liberty is necessary to perform the officer’s duty [to investigate crime], the liberty interfered with, and the nature and
extent of the interference.” (Mann).
• Whether the officer’s suspicion was “reasonable” is assessed objectively: i.e., the reasonable person in the officer’s
position (Mann).
• Once detained for investigative purposes, a person’s rights under both s.10(a) & s.10(b) are engaged. Police must inform
the detainee, without delay, of the reason for the detention and their right to retain counsel. But police may briefly
delay in discharging their duties under s.10(b) where there are safety concerns (a need, based on reasonable suspicion,
to carry out a search for officer safety) or exigent circumstances (Grant, Suberu).
• Investigative detention is distinct from what the Supreme Court has called “preliminary investigative questioning.” Police
engage in the latter where they merely question a suspect who is not detained – and in this case, police are not obliged
to advise a suspect that they are not detained or do not have to answer questions (Suberu).

C. Search Incident to Investigative Detention:

• At common law, police have a power to search incident to investigative detention, but it does not arise automatically
upon a lawful investigative detention. Police must have separate or additional reasonable grounds to suspect that
“officer safety, or the safety of others, is at risk” (Mann).
• This must be based on more than a mere hunch or a ‘personal intuition’ about safety (i.e., police must be able to point
to evidence supporting their belief as reasonable). (Mann).
• The scope of the search may extend no further than what is necessary to address concerns about safety (Grant).




Test for Investigative Detention: Police may detain an INDIVIDUAL briefly for investigative purposes if: (Mann)
1. There are reasonable grounds to suspect (reasonable suspicion) in all the circumstances that the individual is connected
to a particular crime (the offence being investigated), and
• Whether the officer’s suspicion was “reasonable” is assessed objectively: i.e. the reasonable person in the PO’s
position
• Test for ‘Suspicion’ at Common Law: CL makes the following distinctions on the different stds that apply in this
context
o Suspicion would be something possible, even if its probability was low;
o A ‘reasonable suspicion’ would be a reasonable possibility, which is note quite probable but more than
hypothetical (Kang-Brown, Chehil)
o ‘Reasonable grounds to believe’ or ‘reasonable belief’ have been held by the SCC in Debot to be
synonymous with ‘reasonable and probable grounds’, and each is a way of saying there is a reasonable
probability of something, and
§ SCC decisions in Debot, Storrey, and Barren as authority for the proposition that RPG means balance
of probabilities or ‘more likely than not’. But the cases do not state this explicitly, they say RPG is
reasonable probability and this is less than a ‘prima facie case for conviction’. The precise level of
certainty for RPG remains unclear, as outlined in Can v. Calgary (Police Service).
o ‘Balance of probability’ means greater likelihood or ‘more likely than not’
2. That such a detention is reasonably necessary on an objective view of the totality of the circumstances, and
3. The following factors are considered: “1. The extent to which the interference with individual liberty is necessary to
perform the officer’s duty [to investigate crime], 2. The liberty interfered with, and 3. The nature and extent of the
interference”, and
• Once detained for above reasons, the person’s rights under both s.10(a) & s.10(b) are engaged, and
• Police must inform the detainee, without delay, of 1. the reason for the detention and 2. their right to retain
counsel.
o Exception: PO may briefly delay in discharging their duties under s.10(b) if there are safety concerns (a need,
based on reasonable suspicion, to carry out a Search Under Investigative Detention for PO safety) or exigent
circumstances SEE BELOW (Grant, Suberu)
o Exception: PO is doing a Preliminary Investigative Questioning (NOT investig. detent’n) SEE BELOW (Suberu)
o Test for Search Under Investigative Detention: (Mann)
§ Does not arise automatically upon a lawful investigative detention
§ The PO may engage in a protective pat-down search of the detained individual where:
o The PO has separate or additional reasonable grounds to believe that HIS SAFETY IS
AT RISK, and
o The search must be grounded in objectively discernible facts to prevent “fishing
expeditions” on the basis of irrelevant or discriminatory factors (must be based on
more than mere hunch or ‘personal intuition’ about safety, i.e. PO must be able to
point to evidence supporting their belief as reasonable), and
o The scope of the search may extend no further than what is necessary to address
concerns about safety. (Grant)
o Test for Preliminary Investigative Questioning: Distinct from Investigative Detention: (Suberu)
§ Individual is NOT detained
§ PO merely questioning individual
§ Police NOT obliged to advise a suspect that they are not detained or do not have to answer
questions

IV. DETENTION FOR THE PURPOSES OF S.9 & S.10 OF THE CHARTER:

• In Grant, the Supreme Court articulated a test for deciding whether a “detention” for the purpose of s.9 has occurred. A
person is “detained” where there is significant: a. physical restraint; or
b. psychological compulsion.
• Psychological compulsion is established where there is: i. legal compulsion: where a statute places an obligation to
comply: for example, a roadside breath demand; or ii. non-legal compulsion, which arises in circumstances where
“police conduct would cause a reasonable person conclude that he or she was not free to go and had to comply with the
police direction or demand.”
• The Court in Grant held that whether the reasonable person subject to non-legal compulsion would conclude they were
detained depends on the following criteria considered in their totality: i. circumstances giving rise to the encounter as
 reasonably perceived by the individual [were they subject to general inquiries or singled out?]; ii. nature of the police
conduct [language, duration, place, physical contact, presence of others, etc.]; iii. particular
characteristics/circumstances of the individual [age, physical stature, sophistication, being a member of a racial
minority].

S. 9 – DETENTION OR IMPRISONMENT: Everyone has the right not to be arbitrarily detained or imprisoned.
S. 10 – ARREST OR DETENTION: Everyone has the right on arrest or detention
• (a) to be informed promptly of the reasons therefore;
• (b) to retain and instruct counsel without delay and to be informed of that right.

Legal Issue:
• When does a detention occur for the purposes of s. 9 and s. 10 of the Charter?
• Would the reasonable person conclude that he had been detained?
à Answers provided by the SCC in Grant, who articulated a test made up of the above two questions

Test for Whether and When a ‘Detention’ has Occurred For Purpose of s.9: (Grant)
• GRANT TEST #? (Definition of Detention) – If there is significant of the following:
1. Physical Restraint:
• Someone actually being physically touched without consent by the police officers, or
2. Psychological Compulsion:
• Legal Compulsion: Person is legally required by statute to comply with a police direction or demand.
o i.e. PO has reasonable grounds to suspect there is alcohol or a drug in someone’s system to perform
coordination tests or a roadside breath test demand, or
• Non-Legal Compulsion: Police will give a direction and demand but there is no common law or statutory
requirement to comply.
o i.e. Police conduct would cause a “reasonable person to conclude that he or she was not free to go
and had to comply with the police direction or demand.”
o GRANT TEST #2 (Reasonable Person Subject to Non-Legal Compulsion) – Whether the ORP subject to
non-legal compulsion would conclude they were detained in considering the following in their totality:
1. What are the circumstances giving rise to the encounter as they would reasonably be perceived by the
individual?
o Were the police providing general assistance?
o Were the police maintaining general order?
o Were the police making general inquiries regarding a particular occurrence?
o Were the police singling out the individual for focused investigation?
2. What is the nature of the police conduct?
o What is the language used?
o Was there physical contact?
o Where did the interaction occur? (place, i.e. alley, yard, driveway, etc.)
o Was there a presence of others? (i.e. were there other police officers, etc.)
o What was the duration of the encounter?
3. What are the particular characteristics or circumstances of the individual where relevant?
o Age?
o Physical stature?
o Minority status? (i.e. racially, etc.)
o Level of sophistication? (i.e. IQ, etc.)
• On balance of the assessment of steps #1 - 3 (Totality of the Circumstances), has a detention occurred?
o If YES = Detention occurred and suspect must be informed of s. 10(a) and s. 10(b) rights immediately.
§ 10 (a) = Reasons for Detention or Arrest.
(Mann)
§ 10 (b) = Right to Retain and Instruct Counsel.
(Suberu)
o If NO = No detention occurred.



Test for General Detention Power of a GROUP: (i.e. a Roadblock in a Parking Lot) (Clayton)
• Justification for a PO’s decision to detain, recently interpreted in R. v. Mann, will depend of the “totality of the
circumstances” underlying the officer’s suspicion that the detention of a particular individual is “reasonably necessary”:
o Clayton Test for Reasonable Necessity: (Clayton)
1. What is the nature of the situation?
• Seriousness of offence.
• Information known to police about the suspect.
• Information known to police about the crime.
2. What is the extent to which the detention was reasonably responsive or tailored to these circumstances?
• Geographic proximity and scope.
• Temporal scope.
3. What is the balance of the seriousness of the risk to public or individual safety with the liberty interests of members
of the public to determine whether the nature of the stop is no more intrusive than is reasonably necessary to
address the risk?
• On balance of the assessment of steps #1 - 3 (Totality of the Circumstances) is there justification for the
detention?
• If YES = Detention justified.
• If NO = Detention is not justified.

Test for General Detention Power of an INDIVIDUAL in a Police Cruiser, etc.: (Aucoin)
• In order to justify securing the appellant in the back seat, knowing that this would also entail a pat-down search,
detaining the appellant in that manner had to be “reasonably necessary” as per the Clayton Test under the “totality of
the circumstances”, and
o Clayton Test for Reasonable Necessity: (Clayton)
1. What is the nature of the situation?
• Seriousness of offence.
• Information known to police about the suspect.
• Information known to police about the crime.
2. What is the extent to which the detention was reasonably responsive or tailored to these circumstances?
• Geographic proximity and scope.
• Temporal scope.
3. What is the balance of the seriousness of the risk to public or individual safety with the liberty interests of members
of the public to determine whether the nature of the stop is no more intrusive than is reasonably necessary to
address the risk?
• On balance of the assessment of steps #1 - 3 (Totality of the Circumstances) is there justification for the
detention?
• If YES = Detention justified.
• If NO = Detention is not justified.
• If there were other reasonable means to ensure the appellant would not flee the scene (for the proposed goals of the
detention), then detaining him in the police cruiser could NOT be said to be reasonably necessary and would thus have
constituted an unlawful detention within the meaning of s.9 of the Charter.

(R. v. Kang-Brown, R. v. Chehil) – A ‘reasonable suspicion’ would be a reasonable possibility, which is not quite probable but
more than hypothetical.

(R. v. Debot) – The SCC held ‘reasonable grounds to believe’ or ‘reasonable belief’ to be synonymous with ‘reasonable and
probable grounds,’ and each is a way of saying there is a reasonably probability of something; and ‘balance of probability’ means
greater likelihood or ‘more likely than not’.

(R. v. Debot, R. v. Storrey, Baron v. Canada) – These cases are the authority for the proposition that RPG means balance of
probabilities or ‘more likely than not’, but do not state this explicitly and instead say RPG equals reasonable probability and this
is less than a ‘prima facie case for conviction.’

(Can v Calgary (Police Service)) – Precise level of certainty for RPG, as outlined in R. v. Debot, R. v. Storrey, & Baron v. Canada,
remains unclear

(Cloutier v. Langlois)
Facts: Issue:
• A lawyer charges two police officers • When should a PO be allowed to frisk someone incident to arrest?
with assault after he was frisked by Ratio:
both of them before being placed in a • Reasonable and probable grounds are not prerequisites for a “frisk” search. A valid arrest
police car. allows a “frisk” search.
• The incident was for unpaid parking • RPG for arrest & power to search does not impose duty to search, but there is discretion in
tickets. conducting the search
• The lawyer was being verbally abusive • Search must have valid purpose (i.e. disco object of threat, evidence, etc.) & cannot be
towards the two police officers. conducted in abusive fashion

(R. v. Caslake)
Facts: Issue:
§ PO saw a vehicle on the side of the road. He • Was the search of the car unreasonable with s.8 of the Charter? Car was searched NOT
thought D may have been hunting and to advance a legitimate criminal justice objective, but merely as part of a police policy
questioned him, D said he was just peeing. to ensure the safekeeping of goods seized. PO thus lacked a subjective intent to
After D left, PO went back found a large bag advance a criminal justice objective, not consistent with proper purposes of search
of weed. PO pursued the vehicle and incident to arrest, falling outside scope of CL power. But if PO did act with this
overtook him. Backup came and took intention, it would have been objectively reasonable, given the clear connection
custody of D. After the arrest, police between the reason for the arrest and the possibility that drugs might be found in the
searched his car (with no warrant) and car.
found more drugs. Ratio:
§ PO said the search was required by RCMP • A search must be truly incidental to the arrest (Cloutier Test) and must be for a
policy. D claims search was not reasonable legitimate and reasonable objective connected to the offence for which the accused
under s.8 Charter. was the arrested for it to be authorized by law.

(R. v. Fearon)
Facts: Issue:
• Fearon & accomplice robbed a jewelry • Was the warrantless search reasonable & in fact incident to the arrest of Fearon as per the
merchant, fled in black getaway general framework of the CL principle (that is, in the pursuit of a valid purpose related to the
vehicle. PO investigation led to proper administration of justice, such as preventing violence or the eradication of evidence)?
Fearon’s arrest that night. At time of YES, but the cell phone search was not lawful bc PO unable to provide specifics about search
arrest, PO hadn’t yet recovered gun extent, so couldn’t do after-the-fact review.
he used to commit the crime. PO did a • Does this framework still comply w/ s.8 in the context of searching the contents of a cell
pat-down search & found unlocked, phone, which “implicates privacy interests which are different in both nature & extent from
unencrypted cellphone on his person. the search of other ‘places’?
• PO searched phone. No warrant at the Ratio:
time of phone search. Search revealed • The SCC rejected a categorical approach to the constitutionality of cell phone searches
a draft SMS “We did it were the incident to lawful arrest (which is the approach that the Court claims was taken in Riley);
jewelry at nigga burrrrrr” & a photo of instead, measures should be taken “to limit the potential invasion of privacy that may, but
a gun that matched the gun later does not inevitably result from a cell phone search.” Generally, in practice, this would mean
recovered by PO. Fearon charged w/ that such a search would be limited to recent activity on the phone (i.e. phone calls, texts, or
robbery w/ a firearm & related photos). The nature of the alleged offence should also be taken into account; a cell phone
offences. search might be justified incident to an arrest for a crime of violence or a serious property
• PO later obtained a warrant to search offence, but not for a minor offence that does not involve a threat to the safety of the public
the phone several months after or the potential for disposal of evidence. The SCC further modified the standard common law
Fearon’s arrest but didn’t uncover any framework of search incident to arrest by requiring that officers make notes detailing how
new evidence. they searched the phone and what they found, to allow for judicial review after the fact.

(R. v. Golden)
Facts: Issue:
• PO made arrest and • Can the police lawfully conduct a strip search as part of a search incident to arrest?
did subsequent strip Ratio:
search • Reasonable and probable ground to carry out an arrest does not confer automatic authority to the police to
carry out a strip search.
• Police must establish that they have reasonable and probably grounds justifying the strip search in addition
to reasonable and probable grounds justifying the arrest.
• To do a strip search, you need something more, see guidelines / Golden Rules above.

(R. v. Mann)
Facts: Issue:
• Two Winnipeg police officers receive a radio dispatch that there is a break • Do police officers have powers to detain and search an
and enter in progress in downtown Winnipeg. individual without making an arrest?
• Suspect: • Under what grounds do they have this power?
 § 21 year old Aboriginal Male. Ratio:
§ 5’8” tall. • A PO may detain an individual for investigative
§ 165lbs. purposes if there are reasonable grounds to suspect in
§ Black jacket with white sleeves. all the circumstances that the individual is connected
§ Thought to be one “Zachary Parisienne” to a particular crime and that such detention is
• Officers approached the scene and spotted a man who matched the necessary.
description “to a tee”: The man was Philip Mann. • Where a PO has reasonable grounds to believe that his
• Officers stopped Mann and asked him to identify himself. Mann complied safety or the safety of other is at risk, the PO may
and gave his name and date of birth. Mann also complied with the pat engage in a protective pat down search of the
down search in which the police discovered a bag of marijuana and two pills detained individual.
of valium. • At a minimum, individuals who are detained for
§ Mann was arrested and cautioned for the offence of investigative purposes must therefore be advised, in
possession of trafficking marijuana. clear and simple language, of the reasons for the
detention under s.10(a)

(R. v. Grant)
Facts: Issue:
• Three PO (W, F, and G) on patrol near schools with a Hx of student assaults, robberies, & drug • Did the “detention” by the PO
offences. constitute an actual detention? At
§ Officers W and F are in plain clothes and in an unmarked car what point was Grant detained for
§ Officer G is in uniform in a marked car. the purposes of s.9 & s.10?
• Officers W and F notice a young black man (the accused) fidgeting with his pockets as they Ratio:
drive by and radio to officer G to inspect further. • Where no physical restraint or legal
• Officer G initiates an exchange with the man: obligation exists, detention has
§ Force him to stop, requests name/address, “keep his hands in front of him.” occurred when an ORP would
§ Officers W and F attend the conversation. conclude they’d been detained in
§ Accused is asked if he has anything he shouldn’t have. light of circumstances giving rise to
ú Accused responds, “A small bag of weed and a firearm.” the encounter, the nature of the
• Accused is arrested and the marijuana and revolver are seized. police conduct, particular chars of
• Officers inform the accused of his rights and took him to the police station. individual where relevant

(R. v. Suberu)
Facts: Issue:
• Suberu & Erhirhie were on US shopping trip to buy gift cards with stolen credit card. • Was Suberu detained within the meaning
• Constable Roughley followed Suberu (who did not participate in buying) outside the of the Charter prior to his arrest? NO
shopping centre and asks him to wait a moment while other PO arrested Erhirhie. • If so, was he entitled to his s.10(b) rights
• Roughley questioned Suberu while at his car and while questioning Suberu he noticed immediately upon detainment?
bags from a previous shopping centre hit up by Suberu. Dispatch had radioed in to Ratio:
Roughley what shops the suspects had gone to. The bags matched the stores. • As soon as an individual is actually
• Dispatch also radioed in the license plate number and the look of the vehicle the detained, the PO must immediately inform
suspects were using. This matched the vehicle driven by Suberu. him of s.10(a) right to be informed of
• It was NOT until after all this had taken place and after Suberu had made further reason of detention and s.10(b) right to
statements that Roughley informed Suberu of his right to counsel. counsel.

(R. v. Storrey)
Facts: Issue:
• Three Americans were cut off the road near Windsor by another vehicle and were forced to stop. • Did the arrest and detainment of
• The driver and the passenger of the other vehicle got out and punched the Americans and also the Storrey constitute a breach of
slashed them with a knife. his s. 9 Charter right?
• Victims reported to police and reviewed 800 pictures; selected 4 or 5 pictures of men who • Did the arrest meet the
“looked like” the assailant with a knife: All picked out a picture of Darryl Cameron. requirements of s. 495 of the
• But Darryl Cameron was immediately eliminated as a suspect. Criminal Code? NO.
• Investigating officer’s searches then led them to identify the appellant who looked like Darryl Ratio:
Cameron and who had a criminal record of violence and drove a car that was very similar to the • Criminal Code requires that an
one described by the victims (Thunderbird). arresting officer must subjectively
• Thus police felt they had RPG and made arrest w/o a warrant believe he has reasonable and
• The appellant was arrested for aggravated assault at 7:25pm in the evening. probable grounds on which to
§ He was charged the next day at 1:44pm. base the arrest.
• Police stated the delay was for the victims to make it to Windsor in order to identify the • Must also be objective grounds;
appellant as their assailant. ORP must believe there was RPG





(R. v. Clayton)
Facts: Issue:
• Call from a strip club in Ontario that 10 black men were standing in the parking lot and 4 of • Do the police have general detention
them were displaying handguns. Also mentioned that there were four cars and provided a power at CL such that they can establish
description of the four cars. a road block for investigative purposes?
§ Officers placed themselves at the two exits of the parking lot. • Did the road block detention violate
• Police detain a car at back exit that did not meet the description; the PO approached and Clayton’s s. 9 Charter right not to be
informed the driver (Farmer) of the gun complaint and asked if he would step out of the arbitrarily detained?
car. Ratio:
• The other police officer approached the passenger (Clayton) in the passenger side and • PO has authority to detain an individual
noticed suspicious behavior. Asked to step out, Clayton ran from the police. so long as that detention is “reasonably
§ When police caught up they found a loaded, prohibited handgun in his necessary” in light of the “totality of the
pocket. circumstances”.
§ Also found a loaded gun on Farmer.

(R. v. Aucoin)
Facts: Issue:
• PO stopped a car upon discovering the license plate belonged to a different car (valid • Does the change in circumstances of placing
roadblock). Aucoin in the back of the cruiser justify the
§ Appellant (Aucoin) was the driver of the car. search of Aucoin by shifting the reason for
• PO noticed alcohol on the breath of Aucoin and administered a roadside test which led detention?
to the impounding of the vehicle. Ratio:
• PO decided to secure Aucoin in the rear of his cruiser while he finished the paper work. • Detainment and an ensuing search by a PO
§ He was concerned Aucoin would walk away as it was dark. will only be reasonable when they are
• PO sought and received permission to do a pat-down prior to placing Aucoin the back reasonably necessary (as per Clayton Test)
of the vehicle. in the circumstances and there are no other
§ While conduction the pat down the officer felt something soft in means available for proposed goal of
the front right pocket of Aucoin and found it to be cocaine. detainment.


 Confessions [Common Law; s.10(b) & s.7 of the Charter]

s.7 – LIFE LIBERTY AND SECURITY OF A PERSON: Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of fundamental justice.
s.10 – ARREST OR DETENTION: Everyone has the right on arrest or detention
• (a) to be informed promptly of the reasons therefore;
• (b) to retain and instruct counsel without delay and to be informed of that right.

STEP-BY-STEP ANALYSIS OF ADMISSIBILTY OF A CONFESSION/STATEMENT:

PRELIMINARY CONSIDERATION ON THE LAW OF CONFESSIONS

Test for ‘Res Gestae’ Statement:
1. Was the accused statement a spontaneous statement made during or right after the crime?
• If YES = It would be a ‘res gestae’ statement, and it would be admissible on that ground. Thus, there is no need to apply
the voluntariness analysis. Analysis over.
• If NO = The statement is not ‘res gestae’. The accused might attempt to challenge its admissibility on the basis of (a) the
Common Law Confessions Rule, (b) the right to counsel under s.10(b) of the Charter, (c) the right to silence
under s.7 of the Charter, or (d) conformity with s.146 of the Youth Criminal Justice Act IFF the accused is aged
12-17. Move to THE COMMON LAW CONFESSIONS RULE.

THE COMMON LAW CONFESSIONS RULE

• At Common Law, a confession or statement is inadmissible unless the crown can prove beyond a reasonable doubt (BARD)
that it was made voluntarily (Boudreau).
• R. v. Oickle is now the leading authority on voluntariness of confessions in the Common Law. The SCC in Oickle consolidated
earlier case law into a two-stage test that courts should ask when confronted with a question of voluntariness of a
statement made at any time to a Person in Authority.
1. Was the statement by the accused?
• If YES = Move to step #2.
• If NO = No confession, analysis over.
2. Test for Deciding Who is a PIA: Was the statement made to a Person in Authority (PIA)?
• The test for deciding who is a ‘person in authority’ is contextual rather than categorical (Singh).
• Whether someone is a PIA is assessed subjectively (Rothman).
o What did the accused believe or perceive, and was that belief or perception reasonable? (Rothman)
o Was the person in question: (Hodgson)
§ “Formally engaged in the arrest, detention, examination or prosecution of the accused”? or,
§ A police officer, prison official, or guard? or,
§ Someone whom the accused reasonably believes [is] acting on behalf of the state and could therefore
influence or control the proceeds against him or her”?
o In Grandinetti, the SCC held that “The operative question is whether the accused, based on his or her [reasonable]
perception of the recipient’s ability to influence the prosecution, believed either that”: (Grandinetti)
§ “refusing to make a statement to the person would result in prejudice?”, or
§ “that making [a statement] would result in favourable treatment”?
o Exception: Undercover officers (UC’s) are generally not PIA’s (Rothman, Grandinetti).
§ Move to Test for Admissibility of Confessions to a Non-PIA.
• If YES = Move to Oickle Test.
• If NO = Move to Test for Admissibility of Confessions to a Non-PIA.
Test for Admissibility of Confessions to a Non-PIA:
1. Was the statement obtained involving the use of police trickery and would the police conduct shock the community?
• If YES = The statement is involuntary. No Confession. CL Confessions Rule Analysis over. Move to THE RIGHT TO
COUNSEL UNDER S.10(B) OF THE CHARTER.
• If NO = Move to step #2.
2. Was the confession given in a “Mr. Big” scenario?
• If YES = Move to step #3.
• If NO = Move to step #4.
3. R. v. Hart is the leading authority for the relevant test for admissibility in the case of a confession given in a “Mr. Big”
scenario. “Where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a
confession from him, any confession made by the accused to the state during the operation should be treated as
presumptively inadmissible”. (Hart)
a. How reliable is the confession? (Probative Value)
b. What is the bad character evidence that must be admitted in order to put the operation and the confession in
context? (Prejudicial Effect)
c. On a balance of probabilities, can the Crown can establish that the probative value of the confession outweighs
its prejudicial effect?
• If YES = The presumption of inadmissibility is overcome. The confession is admissible. CL Confessions Rule Analysis over.
Move to THE RIGHT TO COUNSEL UNDER S.10(B) OF THE CHARTER.
• If NO = The crown is unable to demonstrate that the accused’s confession is admissible. The rest of the evidence
surrounding the Mr. Big operation is then excluded and thus inadmissible. The confession is inadmissible. CL
Confessions Rule Analysis over. Move to THE RIGHT TO COUNSEL UNDER S.10(B) OF THE CHARTER.
a. A “Mr. Big” operation occurred in Grandinetti. The UC’s posed as criminals. When the
accused confessed to the UC’s, he didn’t know he was making statement to a PIA. This is
because, although the accused believed the UC’s could influence the police investigations,
he did not believe the UC’s were agents of the state. As a result, he did not discharge his
evidentiary burden of showing that his confession was made to a PIA. The SCC held that the
UC’s were not considered PIA’s. The confession was admissible. Of note, the accused was
not in detention, and thus had no further s.7 protections against admissibility. Analysis over.
(Grandinetti)
4. When confessing, the accused:
a. Did not know that he was making a statement to a PIA (i.e. the UC posed as a fellow inmate), and
b. He was not compelled to speak (Rothman)
• If YES = The UC is not considered a PIA. The statement is admissible. CL Confessions Rule Analysis over. Move to THE
RIGHT TO COUNSEL UNDER S.10(B) OF THE CHARTER.
• If NO = Move to step #5.
5. R. v. Hodgson is the leading authority for the Common Law Confessions Rule to Third Parties. Did the accused make the
confession to: (Hodgson)
a. A Third Party whether or not he was strongly induced (i.e. knife to the throat)? and
b. Could it not be perceived as being that the Third Party was part of the prosecution (or PIA)?
• If YES = The Third Party is not considered a PIA. The confession is seen as voluntary and thus admissible. CL Confessions
Rule Analysis over. Move to THE RIGHT TO COUNSEL UNDER S.10(B) OF THE CHARTER.
• If NO = Reconsider Singh, Rothman and Grandinetti in the Test for Deciding Who is a PIA.
a. If certain the person in question is not PIA, confession is admissible and CL Confessions
Rule Analysis over. Move to THE RIGHT TO COUNSEL UNDER S.10(B) OF THE CHARTER.
b. If the person in question is a PIA, move to Oickle Test for Voluntariness of Confessions.
Oickle Test for Voluntariness of Confessions:
• A failure for the Crown at either stage of the test results in the exclusion of evidence (i.e. no s.24(2) Charter analysis)
because this is the common law rule.
1. Was the statement obtained involving the use of police trickery and would the police conduct shock the community?
a. The emphasis at the first stage of the Oickle test (community shock) is less on voluntariness than on maintaining
the integrity of the criminal justice system. Trickery can raise a doubt about voluntariness, but it may not and
can still “shock the community”, resulting in the exclusion of the confession (Oickle).
b. “The authorities in dealing with shrewd and often sophisticated criminals, must sometimes for necessity resort
to tricks or other means of deceit and should not through the rule be hampered in their work. What should be
repressed vigorously is conduct on their part that shocks the community” (Rothman).
• If YES = The statement is involuntary. No Confession. CL Confessions Rule Analysis over. Move to THE RIGHT TO
COUNSEL UNDER S.10(B) OF THE CHARTER.
• If NO = Move to step #2.

2. At the second stage of the test, the court should consider all of the factors together to assess whether the statement was
made voluntarily beyond a reasonable doubt (Oickle). We now apply a “general voluntariness analysis”, in which the
question is whether the crown has proved, beyond a reasonable doubt that a statement made to a PIA was voluntary, in a
sense that:
a. The accused’s will was not overborne by:
i. One or more strong inducements? or
a. One or more strong threats or inducements alone or in combination with other factors
could raise a reasonable doubt about voluntariness (Oickle).
b. A threat or inducement need not be overt; the issue is whether an inducement has been
made turns on whether there has been a ‘quid pro quo’ (Oickle, Spencer).
ii. A significant degree of oppression? or
a. Oppressive circumstances include: Being deprived of food, water, sleep; being denied
access to counsel; being presented with fabricated evidence; or being questioned
aggressively for a long period of time (Oickle).
b. An atmosphere of oppression may be created in circumstances surrounding the takin
gof a statement, although there be no inducement held out of hope of advantage or
fear of prejudice, and absent any threats of violence or actual violence (Hobbins).
iii. A combination thereof?; and
b. The accused did not lack an operating mind?
Operating Mind Test: The standard for an “operating mind” is low, i.e. simply:
i. Sufficient cognitive capacity to be “Knowing what she is saying” & what is said, and
ii. An ability to understand & “[Know] that it may be used by the police to her detriment” (Oickle, Whittle).
a. In assessing whether the ‘operating mind’ test has been met, the court should consider
all the circumstances, including oppression, inducements, and tricky (Oickle).
b. Intoxicated statements must pass the operating mind test to be admissible (Clarkson).
• If YES = The statement is voluntary. Confession is admissible. CL Confessions Rule Analysis over. Move to THE RIGHT TO
COUNSEL UNDER S.10(B) OF THE CHARTER.
• If NO = By virtue of requiring a strong inducement or a significant level of oppression, the CL rule permits some level of
trickery, oppression and/or inducements (i.e. up to the point at which a reasonable doubt about voluntariness is
raised) (Oickle). The trier of fact has concluded that there was at least a reasonable possibility that the accused’s
will was overborne or there was at least a reasonable possibility that the accused lacked an operating mind.
Thus, the trier of fact has found the statement is involuntary. Confession inadmissible. CL Confessions Rule
Analysis over. Move to THE RIGHT TO COUNSEL UNDER S.10(B) OF THE CHARTER.

THE RIGHT TO COUNSEL UNDER S.10(B) OF THE CHARTER

• The right to counsel is codified by s.10(b) of the Charter, which states that “everyone has the right on arrest or
detention…to retain and instruct counsel without delay and to be informed of that right”.
• The purpose of this right is to provide a person the information necessary to make an informed choice as to whether to
speak to or cooperate with authorities. The interests it is meant to protect are dignity and personal autonomy (Clarkson,
Brydges, Sinclair).
• To validly discharge their duty under s.10(b), police, on arrest or detention have a duty to fulfill an information and
implementation component, which each comprise a set of subsidiary duties.
• Of note, suspects do not have a right under s.10(b) to have counsel present throughout a police interrogation in custody,
although suspects must have had an opportunity to consult with counsel beforehand (Sinclair). An exception to this is under
s.146 of the Youth Criminal Justice Act, where “young persons” under the act have a right to have counsel present when
providing a statement.
1. Has the suspect been arrested or detained?
• If YES = Continue to Test for Valid Discharge of Police Duty under s.10(b).
• If NO = Challenge of statement’s admissibility on the basis of the right to counsel under s.10(b) not available. Move to
THE RIGHT TO SILENCE UNDER S.7 OF THE CHARTER.
Test for Valid Discharge of Police Duty under s.10(b):
1. To fulfill the information component, police must:
a. Advise the person that they have a right to “retain and instruct” (consult) counsel without delay, and
b. Advise of the availability of legal aid or free duty counsel and provide numbers. (Brydges, Bartle)
• If YES = Move to step #2.
 • If NO = Challenge of statement’s admissibility on the basis of right to counsel under s.10(b) available. Move to step #5.
2. Did the person express a will to exercise the right to “retain and instruct” counsel?
• If YES = Police must aid in implementing s.10(b). Move to step #4.
• If NO = Move to step #3.
3. Did the person explicitly or impliedly waive the right to “retain and instruct” counsel?
Test for a Valid Waiver of s.10(b):
§ If the person impliedly waived s.10(b), not only must it be clear and unequivocal, it must also be an
informed waiver (i.e. the person must be clear about the availability of free duty counsel, and the
waiver should not be premised on a misapprehension that a desire to exercise s.10(b) is itself
incriminating (Brydges).
a. The waiver must be “clear and unequivocal”, and
b. The waiver must be made when the person is “fully aware of the consequences of waiving the right.”
(Clarkson, Brydges)
a. Exception: Was the suspect very drunk? If so, the waiver of s.10(b) by a very drunk suspect may be challenged as
equivocal; he or she must be given time to sober up and warned about s.10(b) again [and run through the Test
for Valid Discharge of Police Duty under s.10(b) again]. While waiting, police must abstain from questioning.
(Clarkson)
• If YES = Challenge of statement’s admissibility on the basis of the right to counsel under s.10(b) not available. Move to
the Test for the Right to Re-Consult with Counsel.
• If NO = Police must aid in implementing s.10(b). Move to step #4.
4. To fulfill the implementation component, police must:
a. Provide a suspect with a reasonable opportunity to speak to either counsel of choice or duty counsel, in private
(this includes providing them with access to a phone in a private space), and
i. However, an accused must be “reasonably diligent” in their exercise of s.10(b) or it lapses. An accused
cannot use the opportunity to contact counsel to stall. If they cannot reach counsel of choice after
reasonable efforts are made over a reasonable period of time, they must settle with duty counsel (if
available) (Smith, Ross).
b. Do so without delay (unless there are urgent circumstances), and
i. The burden is on the crown to show that the delay in implementing s.10(b) rights was reasonable in the
circumstances (Taylor).
ii. The state has no obligation under s.10(b) to make duty counsel available 24hrs a day, but where an
accused expresses a desire to exercise s.10(b) and duty counsel is not available (and no other counsel is
made available to them), police must hold off on questioning or eliciting evidence from the person until
they have had a reasonable opportunity to reach counsel (Prosper).
c. Hold off on questioning or eliciting evidence until the suspect has had a reasonable opportunity to speak to a
lawyer. (Manninen, Brydges)
i. After a person has had an opportunity to consult with counsel pursuant to s.10(b), even if the suspect
expresses a desire to remain silent, police may continue to question them [see step #2 of THE RIGHT TO
SILENCE UNDER S.7 OF THE CHARTER] (Singh).
• If YES = Challenge of statement’s admissibility on the basis of the right to counsel under s.10(b) not available. Move to
the Test for the Right to Re-Consult with Counsel.
• If NO = Move to step #5.
5. Exceptions: There are some contexts in which a person may be detained but is not entitled to be informed of, or to exercise,
s.10(b) rights immediately. Did one of the following situations occur?
a. When asked to provide a breath sample at the roadside in an impaired driving investigation (Thomsen).
b. When police detain and question drivers for general vehicle offence investigations under the Motor Vehicle Act.
c. When people are detained at customs and questioned briefly upon entering Canada (Simmons).
• If YES = Challenge of statement’s admissibility on the basis of the implementation component of the right to counsel
under s.10(b) not available. Move to the Test for the Right to Re-Consult with Counsel.
• If NO = Challenge of statement’s admissibility on the basis of the implementation component of the right to counsel
under s.10(b) available. Must go through s.24(2) analysis.
a. Move to STEP-BY-STEP ANALYSIS OF AN s.24(2) EXCLUSION OF EVIDENCE ISSUE, IN
ADDITION TO
b. Move to THE RIGHT TO SILENCE UNDER S.7 OF THE CHARTER.


Test for the Right to Re-Consult with Counsel:
1. A person does not have a right to consult counsel again unless:
a. There is a material change in circumstances (i.e. a change in investigative procedure or jeopardy), or
b. There is a reason to believe the first opportunity to consult was inadequate, or (Sinclair)
c. The reason for the arrest or detention itself changes. (Borden)
• If YES = The person must be given their s.10(a) and s.10(b) warnings again (Borden).
a. If person is given their warnings again, restart Test for Valid Discharge of Police Duty
under s.10(b).
b. If person is not given their warnings again, then challenge of statement’s admissibility
on the basis of the right to re-consult with counsel available (Sinclair). Must go through
s.24(2) Analysis.
i. Move to STEP-BY-STEP ANALYSIS OF AN s.24(2) EXCLUSION OF EVIDENCE ISSUE,
IN ADDITION TO
ii. Move to step #2 of THE RIGHT TO SILENCE UNDER S.7 OF THE CHARTER.
• If NO = Challenge of statement’s admissibility on the basis of the right to re-consult with counsel not available. Move to
THE RIGHT TO SILENCE UNDER S.7 OF THE CHARTER.

THE RIGHT TO SILENCE UNDER S.7 OF THE CHARTER

• The right to silence is protected by s.7 of the Charter as a ‘principle of fundamental justice’; it states that “everyone has the
right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justice”
• The purpose of this right is to respect a person’s right to make a free choice as to whether to cooperate or to speak to
authorities. This choice protects an interest in dignity and autonomy (Hebert).
• The right to silence applies only to those detained or arrested, but not prior (Hebert).
1. Has the suspect been arrested or detained?
• If YES = Continue to Hebert Test for Breach of Right to Silence under s.10(b).
• If NO = Challenge of statement’s admissibility on the basis of the right to silence under s.7 not available. Confession is
admissible. Analysis over.
Hebert Test for Breach of Right to Silence under s.10(b):
• In Hebert, the court set out a three-part test for whether the right to silence has been breached. It is breached where an
accused can establish on a balance of probabilities that he or she: (Hebert)
§ Lacked an operating mind (see Operating Mind Test), or
§ Police conduct “effectively and unfairly deprived” him or her from exercising a free choice to speak to
authorities, either by failing to accord the accused the right to counsel or by other conduct.
o If YES = Challenge of statement’s admissibility on the basis of the implementation component of the right to
counsel under s.10(b) available. Must go through s.24(2) analysis. Move to STEP-BY-STEP ANALYSIS OF
AN s.24(2) EXCLUSION OF EVIDENCE ISSUE.
o If NO = Continue to step #2.
2. Has the accused consulted counsel?
• If YES = Even if he or she expresses the will to remain silent, police may continue to question. On its own, the fact that
police continue to question a suspect despite repeated assertions of the will to remain silent does not constitute
a violation of the right to silence under s.7 (Hebert, Singh). Move to Test for Continuous Questioning.
• If NO = Challenge of statement’s admissibility on the basis of the implementation component of the right to counsel
under s.10(b) available. Must go through s.24(2) analysis. Move to STEP-BY-STEP ANALYSIS OF AN s.24(2)
EXCLUSION OF EVIDENCE ISSUE.
Test for Continuous Questioning:
• However, continuous questioning in the face of a will to remain silent, alone or combined with other circumstances,
may:
o Amount to proof on a balance of probabilities that the right to silence has been violated by virtue of the police
having vitiated the suspect’s exercise of free choice about whether to speak; and/or
o Raise a reasonable doubt about whether the statement was made voluntarily (under the common law rule);
and/or
o Raise a reasonable doubt about the veracity of the statement. (Singh)
• If YES = Challenge of statement’s admissibility on the basis of the implementation component of the right to counsel
 under s.10(b) available. Must go through s.24(2) analysis. Move to STEP-BY-STEP ANALYSIS OF AN s.24(2)
EXCLUSION OF EVIDENCE ISSUE.
• If NO = Move to Test for Actively Eliciting Evidence.
Test for Actively Eliciting Evidence:
1. Has the accused:
a. Exercised the right to seek counsel? and
b. Expressed the desire to remain silent? and
c. Been held in police custody?
• If YES = Continue to step #2.
• If NO = Challenge of statement’s admissibility on the basis of the right to silence under s.7 not available. Confession is
admissible. Analysis over.
2. Once an accused exercises the right to counsel, expresses the desire to remain silent, and is held in police custody, police
may seek to obtain evidence through the use of a UC or informant. Has the UC or informant actively elicited evidence
through questioning? (Hebert, Liew)
a. An undercover agent or informer “elicits” information where he or she directs the conversation to a material
issue, rather than allowing the conversation to unfold naturally (Broyles).
• If YES = The right to silence has been violated. Challenge of statement’s admissibility on the basis of the implementation
component of the right to counsel under s.10(b) available. Must go through s.24(2) analysis. Move to STEP-BY-
STEP ANALYSIS OF AN s.24(2) EXCLUSION OF EVIDENCE ISSUE.
• If NO = The right to silence has not been violated. Challenge of statement’s admissibility on the basis of the right to
silence under s.7 not available. Confession is admissible. Analysis over.

SUMMARY OF THE COMMON LAW CONFESSION RULE VS CHARTER PROTECTIONS:

(Rothman v. The Queen)
Facts: Issue:
• Rothman was arrested for the possession of • Is a confession of guilt made to an undercover police officer pretending to be a
hash for the purpose of trafficking. citizen be admissible?
• Before being placed in his cell, the investigating Ratio:
officer asked if he was interested in making a • Statement made by the accused to a person in authority is inadmissible if tendered
statement. by the prosecution in a criminal proceeding unless the Judge is satisfied beyond a
o Rothman declined. reasonable doubt that nothing said or done by any person in authority could have
• The investigating officer had another officer induced the accused to make a statement which was or might be untrue.
(McKnight) dressed in old clothes with a beard • Statement made by the accused to a person-of-authority and tendered by the
placed in the cell and told the accused prosecution in a criminal proceeding against him, though elicited under the
(Rothman) he was a truck driver. circumstances which would not render it inadmissible, shall nevertheless be
• The accused began speaking with McKnight excluded if its use in the proceedings would, as a result of what was said or done by
making incriminating statements. any person in authority in eliciting the statement, bring the administration of
o Not compelled to speak. Own Accord. justice into disrepute.

(R. v. Oickle)
Facts: Issue:
• Police investigation about 8 fires, the accused agreed to submit to a polygraph. • Were the accused’s
o The test took place in a motel room. confessions
• The accused was informed of his rights and that he could leave at any time. Was also told that the test itself voluntary?
was not admissible, but anything he said was. Ratio:
• After the test was complete, the accused was informed that he had failed it. • The accused’s
o He was reminded of his rights, and was questioned for one hour. statements were
o A second officer then questioned the accused for 30-40 minutes. voluntary as he was
• The accused then confessed to setting the fire to his fiancés car and provided the police with the statement. appraised of his
o He appeared emotionally distraught at this time. rights at all times,
• The accused was arrested and reminded of his rights. At the police station the accused was questioned again the police
for a few more hours. During that time he had asked to go home, but was told he was under arrest and that he questioning was
could not leave, but could call a lawyer. persistent and
o The accused then confessed to setting 7 of the 8 fires, was crying, and the police took a written often accusatorial,
statement from the accused. but was never
• The next morning the accused was seen awake only 4 hours after going to bed, and was asked if he would do a hostile, aggressive,
re-enactment. or intimidating.
o The police drove the accused around where he showed the police how he started each fire.

(Clarkson v. The Queen)
Facts: Issue:
• Appellant telephoned her sister while apparently intoxicated stating that her husband had been shot. • Can a confession of guilt in an
o Her sister quoted her as saying, “I did it, I shot him.” However, on cross examination intoxicated state and without
acknowledged that the appellant was rather inarticulate state and could have said the benefit of counsel be
something different as to who shot him. admissible? Did the
• Husband was found sprawled out in the living room with a bullet hole in his right temple with the appellant waive her rights?
appellant crying and screaming hysterically. Ratio:
o The gun was beside the husband, but no finger prints could be found. • As the appellant was
• The police arrived and after a short investigation charged the appellant with murder. unaware of the
o The appellant was told her rights to counsel. consequences of her
• Appellant was escorted to the hospital by the police with her Aunt Estey. statements, her confessions
o While on route to the hospital the police overheard the appellant speaking with her aunt were inadmissible.
and according to the police, contained admissions of guilt. • In order to prove waiver, the
• Those admissions were ruled inadmissible at trail. waiver must be:
• At the hospital, the appellant gave permission to give a blood sample which showed she was over the o Clear and
alcohol limit even 4 hours after the original phone call. unequivocal. and
• The police then took the appellant to the police station in the presence of Estey where she was again o Made by accused
read her rights and acknowledged them. with full knowledge
o The police interrogated the appellant with Estey trying to stop the interrogation until a of the rights and of
lawyer had arrived. the effect the
o The appellant seemingly waved off Estey suggestion, stating that there was no point. waiver will have on
o She proceeded to provide the police and Crown with a statement that was highly those rights in the
inculpatory. process.

(R. v. Brydges)
Facts: Issue:
• Accused was arrested on a charge of second degree • Did Brydges waive his right to council by stating he did not need to talk
murder and advised of his right to retain counsel without to one at the moment when the police officer asked him if he needed
delay. to?
• When taken to Brandon, the accused asked the detective, • Was the interrogation lawful, should it be admitted as evidence?
“They have any free legal aid or anything like that up here” Ratio:
and stated “won’t be able to afford anyone, that’s the • Any waiver is dependent upon it being clear and unequivocal that the
main thing.” person is waiving the procedural safeguard and is doing so with full
• Detective asked if there was any reason for wanting to talk knowledge of the rights the procedure was enacted to protect and of
to a lawyer, and the accused replied “not now no.” the effect the waiver will have on those rights.
o Accused proceeded to answer questions and • Failure of police to inform of legal aid etc. at time respondent first
gave prejudicial statements until he eventually indicated concern was violation of s.10(b); left Brydges w/ misinformed
asked to see a lawyer and was provided with view of his rights. Inquiry a/b legal aid made trial judge believe that
one. Brydges didn’t understand he could have a lawyer even if couldn’t
afford.




(R. v. Manninen)
Facts: Issue:
• Robbery occurred at Mac’s Milk store. Two days after the robbery police officers MacIver and Train, acting • Did the police officers
on information relieved, attended E & R Simonizing in plain clothes. infringe on Manninen’s
• An hour after arrival, the respondent drove up to the premises in a car which answered the description of right to retain and
the stolen car used in the armed robbery. instruct council upon
• The respondent began walking towards Train. Officer MacIver investigated the car and noticed a gun his arrest by failing to
protruding from the front seat. He took the gun and went to meet with Train. allow him to use the
• Both officers arrested the respondent and read him his rights according to a card which all constables were phone?
issued when the Charter was enacted. Ratio:
• The respondent was informed of his rights and was asked a question, “Where is the knife that you had along • The police must
with this (showed the gun) when you ripped off the Mac’s Milk on Wilson Avenue?” provide the detainee
o Respondent answered, “He’s lying. When I was in the store I only had the gun. The knife was in with a reasonable
the tool box in the car.” opportunity to exercise
• The respondent did not make a request to use phone nor did the police volunteer phone to the respondent. the right to retain and
o Respondent did not speak to his lawyer until he was back at the police station and the lawyer instruct counsel
phoned him. without delay (s.10(b).

(R. v. Sinclair)
Facts: Issue:
• After being arrested for murder, Sinclair was advised of his right to counsel and • Were the police required to give Sinclair access
twice spoke by telephone with a lawyer of his choice. to counsel beyond the initial consultation with
o Was later interviewed by a police officer for several hours. counsel?
o During the interview, Sinclair stated numerous times that he had nothing Ratio:
to say regarding the investigation and wished to speak with his lawyer • S. 10(b) does not mandate the presence of
again. counsel throughout a custodial interrogation.
§ Officer refused to let Sinclair speak with his lawyer again. Additional opportunity must be given where
§ Also told Sinclair he did not have the right to have his lawyer developments in the course of the investigation
present during the questioning. (i.e. material change in detainee’s sitch) make
• In time, Sinclair implicated himself in the murder. this necessary to serve the purpose underlying
• After the interview, Sinclair was placed into a cell with an undercover officer where s. 10(b) of providing the detainee with legal
Sinclair made more incriminating statements. advice relevant to his right to choose whether
• Sinclair later did a re-enactment for the police. to cooperate with the police investigation or
not.

(R. v. Hebert)
Facts: Issue:
• Accused was arrested for robbery and appraised of his right to • Was Hebert’s (being a detained person) statement to a UC PO
counsel. violate his s. 7 Charter right to remain silent? YES. Active
• After speaking to counsel, he chose not to make a statement. solicitation by UC despite indicated desire to remain silent.
• He was then put in a holding cell. Statement excluded.
• The undercover officer (dressed as a prisoner) engaged in a Ratio:
conversation, during which the accused made various • Hebert chose not to speak with police. When he chose to speak
incriminating statements which implicated him in the robbery for with a fellow prisoner, this did not negate his decision not to
which he was arrested. speak with police. The UC PO initiated the conversation, not
Hebert.

(R. v. Singh)
Facts: Issue:
• Lof was killed by a stray bullet while standing outside the doorway of a pub. • Did the police violate Singh’s
• 3 Indo-Canadian men were in an argument which they took outside the pub when one pulled a gun s. 7 Charter right, right to
and fired several shots, one struck Lof. remain silent, by continually
• The gun was never found and no forensic evidence linked Singh to the shooting. asking him questions after
o A doorman standing 4 feet from the shooter identified Singh as the shooter. he stated (18 times) that he
o A witness looking at videotape of the 3 men inside the pub identified Singh as the shooter. had a right to silence?
o A police officer was also able to identify Singh as the man wearing the baseball cap which Ratio:
was the presumed shooter. • Police did not violate Singh’s
• During the course of the first two police interviews at the police station after his arrest, Singh s. 7 Charter right, right to
admitted that he was at the pub, but left before the shooting occurred. silence, as the police are
• Singh admitted to being at the second pub on the day of the shooting, where he was photographed, allowed to continue
and he identified himself in that photograph. questioning the detainee
o He also identified himself as the man with the backwards cap in the video taken at the pub. after he has declined to
• These admissions, when taken together with other evidence, later become probative of the issue of make a statement.
identification at trail. [SCC said if detained & know PO are
• Whenever directly question about the shooting, Singh asserted his right to silence. questioning, CL confess rule & s.7 right
 • Singh stated 18 times that he had a right to silence. The interview officer would either affirm that are fxnally equiv. If detained no real
Singh did not have anything to say, or would explain to Singh that he had a duty or desire to please the effective choice to exercise s.7. PO still
evidence before him and he continued the interview. allowed question. Limits on PO in CL
rule. Singh seems to weaken s.7 by
bringing CL & s.7 together. Prior to
detention consider CL, after detention
consider CL & s.7.]

 Exclusion of Evidence [s.24(2) of the Charter]

s.24(2) – EXCLUSION OF EVIDENCE BRINGING ADMINISTRATION OF JUSTICE INTO DISREPUTE: “Where...a court concludes that
evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, 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.”

Possible Charter Rights Breached: (To Apply s.24(2) Issue – Exclusion of Evidence)
s.8 – SEARCH OR SEIZURE: Everyone has the right to be secure against unreasonable search and seizures.
s.9 – DETENTION OR IMPRISONMENT: Everyone has the right not to be arbitrarily detained or imprisoned.
s.10 – ARREST OR DETENTION: Everyone has the right on arrest or detention
• (a) to be informed promptly of the reasons therefore;
• (b) to retain and instruct counsel without delay and to be informed of that right.

STEP-BY-STEP ANALYSIS OF A s.24(2) ISSUE TO ASSESS ADMISSIBILITY OR EXCLUSION OF EVIDENCE:
1. First, we must establish whether and on what basis a Charter right has been breached (see above list of s.8-10):
a. Establish/Explain above.
b. Where an accused establishes that a Charter right has been breached in the course of an investigation or
prosecution, s.24(2) of the Charter allows for the exclusion of the evidence obtained as a consequence of the
breach.
c. On an application under s.24(2), the accused bears the onus of establishing, on a balance of probabilities, that the
admission of the impugned evidence would bring the administration of justice into disrepute (Collins).
2. We now proceed to s.24(2) which states: “Where...a court concludes that evidence was obtained in a manner that infringed
or denied any rights or freedoms guaranteed by this Charter, 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.”
a. Of note, the leading decision on how to interpret and apply s.24(2) is R. v. Grant.
i. In R v. Grant, the SCC reformulated the test for how courts are to apply s.24(2), overturning the earlier test
set out in Collins and Stillman.
ii. The focus of the provision is “not aimed at punishing the police or providing compensation to the accused,
but rather at systemic concerns... [i.e.,] the broad impact of admission of the evidence on the long-term
repute of the justice system.”
iii. As per para 68 of Grant, the general question to be asked under s.24(2) is: “whether a reasonable person,
informed of all relevant circumstances and the values underlying the Charter, would conclude that the
admission of the evidence would bring the administration of justice into disrepute.”
iv. The concern here is not on “immediate reaction to the individual case,” but whether “the overall repute of
the justice system, viewed in the long term, will be adversely affected by admission of the evidence.”
3. We now turn to the analysis set out in Grant as to how courts are to apply s.24(2). Answering and assessing this question
involves a consideration of three “lines of inquiry” and the factors to be considered under each.
Grant Test #1 (Exclusion of Evidence) – Three Lines of Inquiry: (Grant)
1. Via the following factors, what is the seriousness of the Charter-infringing police or state conduct?
i. Here, the worry is about sending the message that the justice system condones serious state
misconduct.
a. Was the conduct inadvertent or minor?
b. Was it willful, reckless, or deliberate?
c. Was there good faith on part of the police? (Negligence is NOT to be equated with good faith)
d. Were there extenuating circumstances? (i.e. A need to preserve evidence)
e. Was the conduct part of a pattern of abuse?
f. Would the admission of the evidence bring the administration of justice into disrepute by sending the message that
courts condone this conduct by failing to disassociate from it?
• The more severe or deliberate the conduct, the greater the need to disassociate from it, favouring
exclusion
g. Côté Test Step 1: Was the evidence discoverable? (Côté)
1. Discoverability: Situations where unconstitutionally obtained evidence of any nature could have
been obtained by lawful means had the police chosen to adopt them
 i. If police could have conducted the search legally but failed to turn their minds to obtaining a warrant or
believe they could not have obtained one, the seriousness of the state conduct is heightened, BUT
ii. If the police exhibited good faith or had a legitimate reason for not seeking prior judicial authorization of
the search, this will likely lesson the seriousness of the Charter-infringing conduct.
h. After setting out each individual line of inquiry and the factors to be considered, apply question/factors to the facts
of the present case, and come to a conclusion about whether each line of inquiry favours admission or exclusion.
2. Via the following factors, what is the impact of the breach on the Charter-protected interests of the accused?
i. Here, the worry is about sending the smsage that individual rights count for little.
a. How serious an impact did the breach have on the accused Charter rights?
ii. What interests are engaged by the infringed right? (i.e. if an illegal search, does it intrude on an area
with a high expectation of privacy or that demeans dignity?)
1. s.8: Privacy, personal integrity, security
2. s.7 & s.10(b): Right to silence, the principle against self-incrimination, etc.
iii. To what degree did the violation impact on those interests?
1. The more serious the incursion, the greater the risk that admission will bring the administration
of justice into disrepute, favouring exclusion
iv. Côté Test Step 1: Was the evidence discoverable? (Côté)
a. Discoverability: Situations where unconstitutionally obtained evidence of any nature
could have been obtained by lawful means had the police chosen to adopt them
1. If the search could not have occurred legally then it’s considerably more intrusive of the
individual’s reasonable expectation of privacy, BUT
2. The fact that the police could have obtained a warrant will tend to lessen the impact of the
illegal search on the accused’s privacy and dignitiy interests protected by the Charter.
b. After setting out each individual line of inquiry and the factors to be considered, apply question/factors to the
facts of the present case, and come to a conclusion about whether each line of inquiry favours admission or
exclusion.
3. Via the following factors, what is society’s interest in the adjudication of the case on its merits (Impact of failing to admit
the evidence)? To assess this, the court must ask:
i. Here, the worry is about the impact of failing to admit the evidence on the truth-seeking function of the
criminal trial.
a. Would the truth-seeing function of the trial process be better served by admission or by its exclusion? We
answer this by considering:
ii. Does the Charter breach undermine the reliability of the evidence, or is it even real evidence?
iii. What is the importance of the evidence to the Crown’s case – is it essential?
iv. The more reliable and relevant the evidence, the more it will favour admission.
1. How reliable and relevant is the evidence?
v. The seriousness of the offence is to be considered but it is not thought to clearly favour admission or
exclusion. There is a risk of disrepute when excluding evidence in the case of a serious offence, but also
a risk of disrepute arising from conviction resting on faulty evidence. The test under s.24(2) should not
become a balance between the seriousness of the breach and the seriousness of the offence.
1. What is the seriousness of the offence?
b. After setting out each individual line of inquiry and the factors to be considered, apply question/factors to the
facts of the present case, and come to a conclusion about whether each line of inquiry favours admission or
exclusion.
4. As mentioned above, R. v. Grant is the leading case on how to interpret and apply s.24(2), which holds that the question to
be asked when interpreting s.24(2) is whether a reasonable person, considering all relevant circumstances and values
underlying the Charter during the balance of assessment on each of the three lines of inquiry above, would conclude that
the admission of the evidence obtained by the Charter breach, in the long-term, bring the administration of justice into
disrepute?
o Of note, the Supreme Court in R. v. Harrison holds that: “The balancing exercise mandated by s.24(2) is a
qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of
the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be
weighed in the balance, to determine whether, having regard to all the circumstances, admission of the
evidence would bring the administration of justice into disrepute.”
• If YES = Evidence excluded pursuant to s. 24(2).
• If NO = Evidence is admitted.
 o For both YES and NO, state a final conclusion about admissibility or exclusion that weighs your conclusions
under all three lines of inquiry.

(R. v. Grant) – 2009 SCC 32
Facts: Issue:
• Three PO (W, F, and G) on patrol near schools with a Hx of student assaults, • Was the evidence obtained in breach of Grant’s
robberies, & drug offences. Charter rights and if so, should the evidence have
§ Officers W and F are in plain clothes and in an unmarked been excluded under s.24(2) of the Charter? Appeal
car allowed on counts of s.9 & s.10(b) and on trafficking
§ Officer G is in uniform in a marked car. charge, but dismissed wrt firearms.
• Officers W and F notice a young black man (the accused) fidgeting with his Ratio:
pockets as they drive by and radio to officer G to inspect further. • When analyzing whether evidence should be
• Officer G initiates an exchange with the man: allowed/dismissed under s.24(2), the court is
§ Force him to stop, requests name/address, “keep his responsible to uphold the accused’s rights w/in the
hands in front of him.” justice system as well as on balance of the ROL. In
§ Officers W and F attend the conversation. order to do so, the courts must balance the effect of
§ Accused is asked if he has anything he shouldn’t have. admissibility of evidence on 3 Lines of Inquiry (listed
above).
ú Accused responds, “A small bag of weed and a • Evidence was obtained through a Charter breach of
firearm.” Grant’s rights, but was NOT excluded because it did
• Accused is arrested and the marijuana and revolver are seized. not bring the justice system into disrepute.
• Officers inform the accused of his rights and took him to the police station.

(R. v. Harrison) – 2009 SCC 34
Facts: Issue:
• PO was on highway patrol • Can the evidence found in breach of Charter Rights s.8 & s.9 be admissible in court? YES, but in this case,
and pulled over a car. the evidence was on the cusp of exclusion.
Accused’s license was Ratio:
under suspension. PO • The balancing exercise mandated by s.24(2) is a qualitative one, not capable of mathematical precision.
searched the car and It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular
found 2 boxes of cocaine case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having
amounting to 35kg. regard to all the circumstances, admission of the evidence would bring the administration of justice into
disrepute.

(R. v. Côté)
Facts: Issue:
• Accused called 911 to report husband had been • Did the police violate Cote’s rights in searching and seizing items at her
injured. residence? YES
• Attending Dr. notified police that husband had a • If so, is the evidence discoverable and admissible per s 24(2)?
metal object in his head. Ratio:
• Police went to Cote residence and said they were • The evidence is not admissible because even though it was discoverable (the
there to secure the area. They did not inform her unconstitutionally obtained evidence could have been obtained by lawful
that husband had a suspected gunshot wound. means had the police chosen to adopt them), the police showed blatant
o Police did not have a warrant. disregard for Cote’s Charter rights and worse, tricked a justice of the peace to
• Police questioned Cote about guns in the residence. provide a warrant after the searches had been conducted.
o This all took place between 1am and • Côté Test as listed above.
6am. • If the search could not have occurred legally, the search is more intrusive
• Later the police obtain warrants and discover a gun of the individual’s reasonable expectation of privacy.
with the same caliber of bullet in husband’s head. • If the police could have obtained a warrant, it will tend to lessen the
• Accused is brought to the station where she was impact of the illegal search on the accused’s privacy and dignity.
finally informed of her right to counsel.

Summary of Application from R. v. Grant’s s.24(2) Analysis to Various Forms of Evidence & The Likely Outcomes:
o SEE NEXT PAGE

 Application of Grant s. 24(2) Analysis to Various Forms of Evidence
Professor Ferguson

! The!Three!Lines!of!Inquiry! !
Form!of!Evidence! Conclusions!
Seriousness)of)the)State) Impact)on)the)Charter4Protected)Interests) Society’s)interest)in)
Conduct) adjudication)on)the)merits)
Statement!by!the!
4)this)has)long)been)seen)as) 4)often)involves)the)infringement)of)s.)10(b))right)to)counsel,)) 4)some)statements)obtained) 4)the)presumptive)–)but)not)automatic)–)exclusion)
Accused!
very)serious) interfering)with)meaningful)and)informed)choice)whether)to) in)contravention)of)the) of)statements)obtained)in)breach)of)the)Charter)is)
!
speak,)right)to)silence,)and)principle)against)self4 Charter)will)raise)concerns) supported)by)looking)at)these)three)lines)of)
! 4)serious)police)misconduct)
incrimination.) about)reliability) inquiry)
! will)be)of)greater)concern)
than)minor)or)inadvertent) 4)violation)of)these)fundamental)rights)favours)exclusion) 4)such)statements)tend)to)be)excluded)under)s.)
slips) 24(2))
4)however,)if)just)a)technical)breach,)if)the)statement)is)made)
) spontaneously,)or)if)one)of)those)exceptional)circumstances)
when)the)statement)would)have)been)made)notwithstanding)
the)breach,)the)impact)will)be)far)less)
Bodily!Evidence!
4)Fact)specific) 4)to)what)degree)did)the)search)and)seizure)intrude)on)the) 4)will)usually)favour) 4)generally,)if)deliberately)inflicted)and)impact)on)
!
privacy,)bodily)integrity,)and)human)dignity)of)the)accused?)) admission)because)evidence) accused)is)high,)will)be)excluded)notwithstanding)
! 4)If)deliberate)and)
obtained)from)the)accused’s) reliability.))Otherwise,)likely)to)be)admitted.)
egregious,)more)of)a) 4)forcible)taking)of)blood)samples)at)one)end)of)the)spectrum)
body)tends)to)be)reliable)
problem)
4)fingerprinting)and)iris4recognition)at)the)other)
Non?Bodily!Physical!
4)Fact)specific) 4)extent)of)interference)with)privacy)(and)in)some)cases) 4)will)generally)weight)in) 4)the)Court)does)not)draw)any)broad)conclusions)
Evidence!
human)dignity)and)other)interests))will)be)the)key) favour)of)admission) in)Grant)
! 4)If)deliberate)and)
consideration)
! egregious,)more)of)a)
problem)

Derivative!Evidence!
4)Fact)specific) 4)the)key)consideration)will)be)the)extent)to)which)the) 4)since)the)evidence)is) 4)when)reliable)evidence)is)discovered)as)a)result)
(i.e.!–!physical! Charter)breach)impinged)on)a)free)and)informed)choice) physical)or)“real”,)there)is) of)a)good)faith)infringement)that)did)not)greatly)
4)If)deliberate)and)
evidence! whether)or)not)to)speak)to)the)authorities) less)concern)about) undermine)the)accused’s)Charter)interests,)
egregious,)more)of)a)
discovered!as!a! reliability) admission)will)be)the)normal)result.)))
problem) 4)if)the)physical)evidence)could)have)been)otherwise)
result!of!an!
discovered)–)was)independently)discoverable)–)the)impact) 4)if)conduct)is)egregious)and)impact)is)high,)
unlawfully!obtained!
on)this)free)and)informed)choice)will)be)lessened) should)be)excluded)despite)reliability.)
statement)!
! ) 4)judge)should)be)sensitive)not)to)create)
! incentives)for)police)to)illegally))obtain)statement)
hoping)to)gather)derivative)evidence)
Summary of Application from R. v. Grant’s s.24(2) Analysis to Various Forms of Evidence & The Likely Outcomes: