Chad - Crim-Pro-Framework-Knoll-2015

Knoll 2015 Criminal Process Framework  (2) An order may be made under (1) on the grounds that the ends of justice would be subverted by the disclosure o If the disclosure of the information would  Comprise the identity of a confidential informant  Comprise the nature and extent of an ongoing investigation  Endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used, or  Prejudice the interests of an innocent person; and  For any other sufficient reason Search Incident to Arrest Common Law and premises  There are three types of search powers and recognized at common law o Search incident to arrest or investigative detention o Consent searches o Searches pursuant to the ancillary powers doctrine **Brezack (mouth search) 1949 OnCA Case of historical note - pre charter case, but only case on mouth search F: Police suspected accused would be hiding drugs in mouth, forced their hands into his mouth, found no drugs there, later found 5 capsules of drugs in the accused’s car I: Was the police officer engaged in the lawful execution of his duty in making the arrest and forcibly inserting his finger inside the appellant’s mouth? YES R: The attempt to search the inside of the appellant’s mouth was a justifiable incident of that arrest Analysis:  Evidence supports the finding that the constable was engaged in the lawful execution of is duty as a peace officer in making an arrest, even though the narcotic was not on the accused it was in his car around the corner and that was enough to make an arrest  Constable was warranted in making the arrest even though he was incorrect as to where the drug would be found  The attempt to search the inside of the appellant’s mouth was a justifiable incident of that arrest *R v Tomaso (Search Lawful/ Pre Arrest) 1989 ONCA Pre arrest search okay if there is RPG  You can do a S.I.A even before you arrest an accused as long as there is reasonable and probable grounds for the arrest  Search may be good even if arrest did not take place, if there were R&P grounds for the arrest, and the arrest can follow after search- fact that the grounds were there prior to search/arrest is key  Seizure of blood collected from unconscious accused’s bleeding ear 2 weeks prior to arrest was unreasonable Hunter v Southam Inc 1984 SCC A search conducted without prior authorization is presumptively unreasonable; however SIA is an exception S.8 protects REP Warrantless searches are prima facie unreasonable (exception SIA; school searches) Cite for the idea that the Charter protects persons NOT places ****Stillman 1997 SCC (hair/teeth/tissue- criteria SIA (3)- Historical) Teenager who killed a girl took samples against his will Hunter is the foundation for this case- Is the official authority on SIA Analysis: 3 requirements for any reasonable search (Collins): a) it must be authorized by law (statutory or common law); b) the law itself must be reasonable according to the Charter (no surgery); c) the manner in which the search was carried out must be reasonable  if the law is reasonable it does not necessarily mean it is has been carried out in a reasonable way - Determine whether a statutory or common law power that authorized the police to search and seize the appellant’s scalp hairs and pubic hairs or to take dental impressions or buccal swabs - C.C did not authorize a procedure for obtaining a warrant to search a person therefore for no statutory authority - Must demonstrate that they were authorized by common law power or that the appellant had no Reasonable Expectation of Privacy 3

Knoll 2015 Criminal Process Framework person from swallowing heroin. (Golden/PACE factors are now the law) Consent Search: - Once a person consents to police action, he in effect waives the right to invoke the normal legal protections against the intrusions inherent in such actions. - Should be informed consent and real consent (not under threat) - Must be over property that you have a right to give consent too. Dedman v R #1 (Checkstop - Voluntary) A random stop by a PO of the appellant’s motor vehicle, as part of a program to reduce impaired driving, appellant complied with signal to stop. Voluntary stopping for police does not mean lawfully stopped! - Where does this power come from? Must come from statute or common law. The police have no additional powers. - PO only act lawfully when they exercise authority conferred upon them by statute or at common law. The apparent voluntary compliance by a citizen with a police request to stop a motor vehicle cannot alter the legal basis which must justify such police action when it is challenged in later proceedings - Having regard to the authoritative and coercive character of police requests, submission to a police officer’s exercise of apparent authority, such as a demand to stop at a roadblock, cannot be characterized as voluntary or consensual unless it was clear to the person at the time that he was free to refuse to comply. - Has been relied upon to hold that the consent to search must have been real and voluntary, and further that the person searched must have sufficient awareness to have waived the constitutional right to be protected against unreasonable search and seizure; the person must be aware of the potential consequences of giving consent. - It can only be called true consent when one can refuse it without any consequences R v Wills Consenting to an otherwise unauthorized S & S Person cannot give an effective consent to a search unless the person is aware of their right to refuse to consent to that search: - The implication here is that there is an obligation on the police to tell you that you can refuse and that you will be fine, and you can go ahead without consequence - Police actually, in great deal of activities, use unknown powers; public tend to comply because do not know what their powers are. The application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on a BOP that:  There was consent express of implied  Giver of consent had authority to give consent  Consent was voluntary (not product of oppression, coercion or other external conduct which could negate the freedom to choose)  Giver of consent was aware of right to refuse consent  Giver of consent was area of the potential consequences of giving consent R v Lewis The law is that the police do not have to tell you that you can refuse - just run the risk of not being able to prove to a trial that consent informed  Police are not under a duty to advise a person of the right to refuse consent, of which failure to do so would cause a Charter violation under s.8  No informational component under s.8 like there is under s.10  But if police do not tell a person of the right to refuse to give a consent to search, the police run the real risk that any apparent consent given will be found to be no consent at all for the purposes of s.8 6

Knoll 2015 Criminal Process Framework reasonable excuse. The ONCA reversed and the accused appealed.  Martin J.A. in this case (at the appeal level)  “Although a police officer is entitled to question any person in order to obtain information with respect to a suspected offence, he has no lawful power to compel the person questioned to answer. Moreover, a police officer has no right to detain (qualified right b/c of Mann ) a person for questioning or for further investigation. Although a police officer may approach a person on the street and ask him questions, if the person refuses to answer the police officer must allow him to proceed on his way. ”  Waterfield test provides no support for police conduct where the conduct is unlawful at common law  For the Waterfield test to apply the police must be engaged in a lawful execution of their duty at the time of conduct in question  Since police lack the legal authority to detain a person for questioning or for purposes of investigation at common law, even on suspicion, short of arrest, I am unable to find any basis for the power to stop and detain a motorist asserted in the circumstances of this case.  Random stop of motorist means no R & P grounds  slippery slope to allow this  No power to investigate detention at common law- Martin J.A Dedman CA but Mann changes this Search and Seizure in the Charter Context Constitutional Minimum Standards: SIA- Arrest must be carried out in reasonable manner; There must be reasonable/probably grounds for arrest Charter s.8 – “Everyone has the right to be secure against unreasonable search and seizure” Charter s.9- “Everyone has the right not to be arbitrarily detained or imprisoned” Charter s.10(a)- “Everyone has a right “on arrest or detention” to be informed properly of the reasons therefore i. Warrant Required : Hunter v Southam is considered to be one of the most important cases decided under the Charter; remains at the heart of the Canadian constitutional jurisprudence respecting search and seizure ***Hunter v Southam Combines Investigation Act provided for a search warrant. 3-4 days before Charter was in effect the authorization for the search was given. 2 days after Charter was in effect they executed the search warrant. Southam did not like this, fought it and eventually won in SCC Analysis - Warrantless searches are prima facie unreasonable (unless a specific exception by the SCC ie. SIA) - S.8 protects persons not places o Might go beyond the rights of privacy, o Right can be expressed as freedom from unreasonable search and seizure or entitlement to a reasonable expectation of privacy (but not an absolute right to privacy) - Where it is feasible to obtain prior authorization, I would hold that such authorization is a precondition for a valid search and seizure. - Who must grant authorization for the search?  Neutrality and impartiality, need not be a judge but at a minimum be capable or acting judicially - There must be reasonable and probable grounds for authorizing the search  Suspicion are not sufficient. Reasonable belief is not sufficient - Test: In cases like the present, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search constitutes the minimum standard consistent with s.8 of the Charter for authorizing search and seizure Minimum Constitutional Standard for Warrant Searches pursuant to s. 487 of the CCC; 4 points: - (1) Authorized by an impartial and independent person acting judicially - (2) Evidence must show reasonable grounds that an offence was committed o Credibly based probability, not mere suspicion 9

Knoll 2015 Criminal Process Framework - Field Search o Strip searches conducted in the field could only be justified where there is a demonstrated necessity and urgency to search for weapons or objects that could be used to threaten the safety of the accused, the arresting officers or other individuals o The police will also have to show why it would have been unsafe to wait and conduct the strip search at the Police station rather than in the field (3 levels of reasonable & probable grounds: RPG for arrest; RPG for strip search; RPG (called “necessity & urgency”) for field strip search) o Field strip searches can only be justified in exigent circumstances o Note: PACE 4 - Body Cavity Search o Must have reasonable & probable grounds to justify the arrest; must have RPG for conducting a body cavity search o Note: PACE 4 & 10 Additional grounds of justification are required for strip searches. (1) There must be R/P grounds for arrest making the arrest lawful, (2) The strip search must be incident to arrest, (3) There must be R/P grounds justifying the strip search, and the mere possibility that an individual may be concealing evidence or weapons upon his person isn’t sufficient to justify a strip search and (4) If a field strip search is conducted, it must be EXIGENT CIRCUMSTANCES= necessary and urgent- only where the police have R/P grounds to believe that it is necessary/urgent to conduct the search in the field rather than at the station because there may be weapons/objects that could be used to threaten safety. iii. Unlawful Searches violate S.8 - Courts have been resistant to the view that an illegal search is necessarily unreasonable - Since Collins and Kokesch of the SCC, it seems clear that a search that is not legal either under statute or at CL is necessarily unreasonable under s.8 *R v Kokesch Perimeter Searches Suspicion not enough Charged with growing marijuana. Police were performing surveillance as a result of info which they recvd. Conducted a perimeter search of the residence (felt walls for heat), w/o a warrant and used that as the basis to get a warrant to seize the drugs. Snooping around the house w/o a warrant, and then got a warrant. Analysis - Presumption that warrantless searches are unreasonable (Hunter) - Burden now rests on Crown to prove reasonableness of search (Collins) - You cannot use fruits of illegal search to get a valid warrant - In order for search to be reasonable it must o Be authorized by law o The law itself must be reasonable o The manner in which the search is carried out must be reasonable - Was it authorized by law?  NO. Fails 1 st test, was not authorized by law. The police lacked statutory authority to conduct the perimeter search. - Crown tried to rely on ancillary powers doctrine to say that the perimeter search was carried out under lawful authority pursuant to the common law powers of the police and was not a trespass on private property  No, cannot use that as authority. Used in Colet decision. Respect for the private property rights of the individual absent of clear statutory authority. - An unauthorized perimeter search of a private residence is a violation of s.8 12

Knoll 2015 Criminal Process Framework  Takeaway o New paradigm; Warrantless searches in schools not PF unreasonable; Rules have to be satisfied R v Tessling (FLIR  detect heat sources) Used to detect heat sources, in this case used as info to obtain a warrant and police searched accused’s house and found marijuana, 2 sets of scales, freezer bags and weapons  Can use the FLIR to get a warrant to search premises, may change if technology becomes more advanced.  External patterns of heat distribution on the external surfaces of a house is not information in which the respondent had a REP  Offers no insight into his private life, and reveals nothing of his “biographical core of personal information”  Its disclosure scarcely affects the “dignity, integrity and autonomy” of a person whose house is the subject of the FLIR image.  FLIR information alone is insufficient ground to obtain a search warrant  Tessling rests uneasily with Kokesch- difficult to understand how flying over a house with FLIR technology is constitutional whereas walking up a driveway to feel the wall for heat is not  Overall, the ruling in Tessling appears to tilt s.8 principles markedly in favor of the interests of law enforcement rather than protecting privacy o Court says there was no search because there was no reasonable expectation of privacy o It is one thing to decide there as no reasonable expectation of privacy and no s.8 protection, but to go further and deny that there was a search would be hard to justify to a house owner watching a police helicopter flying overhead with FLIR technology **R v. Patrick ( Abandonment ) Searched garbage outside of home and retrived drug-making stuff. Claimed s&s of garbage was unreasonable  TEST FOR ABANDONMENT : The question is whether the claimant to s. 8 protection has acted in relation to the subject matter of his privacy claim in such a manner as to lead a reasonable and independent observer to conclude that his continued assertion of a privacy interest is unreasonable in the totality of the circumstances  Abandonment is an issue of fact  Until the garbage is placed at the lot line or out of reach (out of air space), the householder retains an element of control over its disposition and cannot be said to have unequivocally abandoned it  When the garbage is placed at lot line for collection, the householder has sufficiently abandoned his interest and control to eliminate any objectively reasonable privacy interest  Note Para 25 for list of examples Charging, Arrest and Detention a. Information Before a Justice: Summons or Arrest Warrant - any individual can attempt to initiate a criminal prosecution by laying an information in writing and an oath before a justice who must receive the info but has discretion to decide whether a case is made out for compelling the accused to attend the charge by issuing a summons or an arrest warrant. *R v Pilcher PO himself has to have RPG to swear the info – but he need not have done the investigation himself s. 504 “Any one who, on reasonable and probable grounds, believes that a person has committed an indictable offence may lay an information in writing under oath before a justice. o must have reasonable and probable grounds o reasonable and probable grounds does not mean someone told you to do it, or that you read the police report. s. 504 contemplates a situation where an informant acting in a prudent and cautious manner, apprises himself of the relevant circumstances surrounding the case which he reasonably and in good faith believes to be true and concludes with a genuine conviction that the person to be charged is probably guilty of the crime.  By reading what appears in an information given to him by others, an informant cannot be informed in such a manner in which he is obliged to be informed  must read report etc. in order to protect accused from frivolous or foundationless accusations RPG is (and case is still good authority):  Prudent and cautious manner  Informant is acting in good faith and reasonably – objective standard 15

Knoll 2015 Criminal Process Framework procedure; it was at the absolute discretion of the police officer. A discretion is arbitrary if there no criteria, express or implied, which govern its exercise  Limit imposed on the right not be arbitrarily detained is a reasonable one, demonstrably justified in a free and democratic society R. v. Ladouceur  Roving random stop – police officer is driving along and sees a vehicle and decides to pull it over – saved by s. 1 even though it’s arbitrary  Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as (1) checking the driver’s license, ownership and insurance, (2) the sobriety of the driver and (3) the mechanical fitness of the vehicle . Once stopped the only questions that may justifiably asked are those related to driving offences  There is a limit here as to what they can do when they stop you randomly  Ontario had specific legislation that allowed for this. Dissent (Sopinka J.)  This case may be viewed as the last straw. If sanctioned, we will be agreeing that a police officer can stop any vehicle at any time, in any place, without having any reason to do so.  Random checking at a stationary, predetermined location infringes the right much less than the unlimited right contended for.  By contrast, the roving random stop would permit any individual officer to stop any vehicle, at any time at any place. The decision may be based on any whim. Some officers may stop younger drivers, others older cars, and so on.  My colleague states that in such circumstances a Charter violation may be made out. If however no reason need be given or is necessary, how will we ever know? The officer need only say, “I stopped the vehicle because I have the right to stop it for no reason. I am seeking unlicensed drivers.” R. v. Mellenthin  Police directed accused’s vehicle into a check stop set up as part of a program to check vehicles. That revealed an open gym bag on the front seat. The police officer asked what was in the bag. The accused said it was food. In the end, it was hash oil. The accused was charged w/ possession of hash oil.  Cory J. for a unanimous court held that this went far beyond Ladouceur as they were no longer asking questions about mechanical fitness, ownership, proof of vehicle and sobriety. Subsequent questions pertaining to gym bag were improper . Police had not even the slightest suspicion that drugs or alcohol were in the vehicle or in possession of the appellant.  Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search. Vehicle Stops – Take Aways  Vehicle stops may be arbitrary under s.9 but often saved by s.1 ( Hufsky, Ladouceur )  Vehicle stops may have some limits where s.1 will not save them ( Mellenthin )  Police can only stop you for a) licensing b) insurance & ownership c) mechanical fitness of the vehicle & d) sobriety R v. Nolet (Commercial Vehicle)  The spot check search of a commercial vehicle may allow for greater search than a non-commercial vehicle.  A warrantless search of a commercial truck or vehicle may be allowed by statutory provision (ex. s.63 HTA, Sask).  There are minimal privacy expectations in the cab of a commercial vehicle. Low REP!  A commercial vehicle random stop may allow for extensive interior search of the content of the vehicle cab that will not violate s.8 & 9 of the Charter R v Brown (Racial Profiling)  Involves the targeting of individual members of a particular racial group, on the basis of the supposed criminal propensity of the entire group  is criminal profiling based on race. Racial or color profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or color resulting in the targeting of individual members of that group. In this 18

Knoll 2015 Criminal Process Framework necessary in order to avoid destruction of evidence. on appeal  The warrant must be in possession of one of the police search team. It does not necessarily have to be in the hands of the individual who makes the dynamic entry. **R v Godoy Emergency Investigative Entry Police respond to disconnected call that disconnected before caller even spoke - accused said everything is fine, no need to come in. Police barge in; find wife curled in fetal position, sobbing with bruise on eye. States accused hit her. Emergency Investigative entry, not for arrest  Public policy requires that the police have authority to investigate 911 calls, but whether they may enter dwelling houses in the course of such an investigation depends on the circumstances of each case.  Accepted test for evaluating the CL powers & duties of police  Waterfield: If police conduct interferes w/ person’s liberty or property the court must consider 2 questions (The Waterfield Test) o Does conduct fall w/in the general scope of any duty imposed by statute or recognized at CL o Does the conduct albeit w/in the scope of such a duty involve an unjustifiable use of powers associated with the duty  No doubt forcible entry by police into a private dwelling home is prima facie interference, so apply Waterfield test  Dedman  CL duties of police include “preservation of the peace, the prevention of crime, and the protection of life and property’  911 call might not engage duties under the Act, but definitely engages the CL duty to respond to distress calls  Central issue is w/ the 2 nd branch of Waterfield test  does the conduct involve an unjustifiable use of police powers in the circumstances? o Simpson  what is meant by “justifiable” depends on a number of factors  duty being performed  extent to which some interference w/ individual liberty is necessitated in order to perform that duty  the importance of the performance of that duty to the public good  the liberty interfered with  the nature and extent of the interference  In case at bar it was necessary for the police to enter the appellant’s apartment in order to determine the nature of the distress call  no other reasonable alternative  The intrusion by police must be limited to protection of life & safety, no further permission to search premises or otherwise intrude on a resident’s privacy or property Takeaway:  Godoy is leading case on investigative entry for non arrest circumstances  PO can enter private residences to investigate if they satisfy the Waterfield Test- Ancillary Powers In 911 circumstances, they will most likely satisfy this  Entry under these circumstances do not allow for an unlimited search; restricted to the circumstances Meaning of Arrest: what constitutes an arrest *R v Latimer (Defacto arrest) Police say “you are being detained for investigation of death of your daughter” – was no such thing as investigative detention at this time. He is taken to police station, questioned and gives an incriminating statement  SCC – rights were not violated, b/c this was in fact a de facto arrest  had police put their minds to it they would have known they had R&P grounds to arrest him. So even though no one knew he was under arrest – he was.  Subjectively, despite the fact that the officers decided not to arrest L, it is clear that they had believed that they had reasonable grounds to arrest him – Knoll disagrees.  This never existed before – simply comes unexpectedly in the Latimer case – de facto arrest.  Interim detention may = arrest  If facts = Storrey test, no s.9 violation Five Points  There can be a de facto arrest w/out an individual being told as much  Intention of police is not critical in this context  If underlying facts support Storrey, there may be a de facto arrest  If it is a de facto arrest, there is no violation of s. 9 21

Knoll 2015 Criminal Process Framework – argument arises that his Charter rights have been violated s. 9 – arbitrary detention. Violated his s.9  An intended detention may in fact amount to arrest Right to Counsel (s.10 (b)) s.10b: Everyone as the right on arrest or detention ... (b) to retain an instruct counsel is not absolute, but is only available to one under arrest or being detained. Triggering Mechanism : right to counsel is not absolute, but is only available to one under arrest or being detained R v Therens (meaning of detention)  The meaning of detention  Detention has a wide meaning to embrace state control over an individual, even psychological, where significant legal consequences may result  The test is whether objectively viewed, the situation was coercive  There must be a reasonable indication that the accused may refuse to comply before he will not be detained  If you cannot reasonably regard yourself as free to refuse to comply? You have been detained. ****R v Grant (psychological + actual detention) P patrolling area and see black accused walking down street. Accused stared at cops while fidgeting with his coat and pants. One PO made contact with accused by standing on sidewalk directly in his path. Accused nervous and adjusting jacket, PO told him to keep hands in front. Two other PO took tactical positions behind first PO. PO asked if he had anything illegal and he replied small bag of weed and firearm. Note: Grant and Suberu are fact driven cases – so know the facts if you want to apply them on an exam – try to match the facts on the exam somewhere along the spectrum of detention ( Grant ) to no detention ( Suberu ) A detention occurs “when a person submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.” The SCC explained that a person’s choice to walk away is deprived by (1) actual physical restraint, (2) psychological compulsion. Psychological compulsion comes in two forms: 1. Legal Compulsion: Person legally required to comply with direction or demand (e.g., breath sample) 2. No Actual Legal Compulsion: Police will give a direction and demand but no legal obligation to comply. In cases where no physical restraint or legal obligation, may not be clear if person has been detained. To determine if reasonable person would conclude they had been detained, court may consider (3) factors: 1. The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police providing general assistance; maintaining general order; making general inquiries regarding a specific occurrence; or, singling out the individual for focused investigation. 2. The nature of the police conduct , including: the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter 3. The particular characteristics or circumstances of the individual where relevant , including age; physical stature; minority status; level of sophistication. If and when a detention crystalizes, 10b is triggered, and the police must inform the detained of their rights immediately In this case, the accused was detained as a reasonable person would have assumed they had no choice but to comply:  Began with first PO stepping in his path and asking Q’s – no detention at this stage  Then PO told accused to “ keep hands in front of him ” – leads to conclusion Grant was detained  Next two more PO approach and take position behind first PO and began Q’s about whether he “had things he shouldn’t”  this took on character of interrogation and PO had effectively taken control of Grant  The encounter was inherently intimidating  also points to detention 22

Knoll 2015 Criminal Process Framework  Also must look at Grant being 18, confronted by 3 larger PO  reasonable 18 year old in his shoes would have felt detained  Sustained and restrictive tenor of PO conduct ****R v Suberu PO responded to call about stolen CC at store, advised two male suspects. PO saw other PO talking to employee and male customer. Suberu walked past PO and said other guy did this and not him, so he can go. PO followed him outside and while at van said “Wait a minute, I need to talk to you before you go anywhere.” PO received more info including description and plate of van, which matched Suberu. Other evidence spotted in van and accused was arrested for fraud and advised of right to counsel.  As soon as an individual is actually detained, police are obligated to inform him/her of 10(b) right to counsel.  In situation where the police believe a crime has recently been committed, t he police may engage in preliminary questioning of bystanders without giving rise to a detention under ss.9, 10 of the Charter o Bystanders under no obligation to comply  The onus is on the applicant to show that in the circumstances he was effectively deprived of his liberty of choice o Objective test (reasonable person)  In circumstances of this case,  Encounter initially preliminary or exploratory in nature  No move to obstruct movement; very brief dialogue  Personal circumstances not significant  Initial part of encounter was preliminary/exploratory  not detention  No indication that Suberu had no choice but to comply, as was in Grant  Thus no triggering of s. 10(b) until he was formally arrested, at which point he was advised of right to counsel Strong Dissent (Binnie & Fish): Reasonable person in accused’s situation would have felt he was free to walk away Charter Rights- Informational Duties 10 b expressly confirms the right to be informed of the right to retain and instruct counsel without delay. This is mandatory on arrest or detention. A failure to inform will constitute a violation of s.10b. ***Bartle #1 General principles of 10b s . 10(b) of charter imposes following duties on state authorities who arrest or detain a person : 1. to inform the detainee of his right to retain and instruct counsel w/out delay and the existence and availability of legal aid and duty counsel (informational) 2. if a detainee has indicated a desire to exercise this right, to provide the detainee w/ a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (implementational)  If the accused does not assert the right after it is given to him/her it is implied waived  As soon as a reasonable person would assert the right (ex. If there was a language barrier, it might be reasonable for someone to wait to understand what has happened)  Right can be asserted in effect, or constructively  “Reasonable opportunity to exercise” refers to after the right has been asserted 3. to refrain from eliciting evidence from the detainee until he had that reasonable opportunity, again, except in cases of urgency or danger (implementational) - Implementation duties are not triggered unless and until a detainee indicate a desire to exercise his right to counsel. - Right to counsel is not absolute . Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative 23

Knoll 2015 Criminal Process Framework duty on police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended . - 10b rights may be waived by detainee, although standard for waiver is high , especially in circumstances where alleged waiver has been implicit (if officer says gave rights and saw his body language that not interested- if there is going to be an argument that there was an implicit waiver, it will be a very high standard for the prosecution to meet to show this occurred) *Brydges Standard to trigger assertion is not high- could be a minimal as do you have Legal Aid Informational Component (right asserted by implication)  Once the appellant in effect requested the assistance of counsel, it was incumbent on the police officer to facilitate contact with counsel by giving the appellant a reasonable opportunity to exercise his right to counsel.  1) Obligation on the accused to assert/invoke the right to counsel can be indirect or in effect or in essence “Do you have legal aid lawyers” is enough to assert the right to counsel  2) The main function of counsel is to advise the accused of the right to remain silent  3) Section 10(b) rights includes the right to have information on duty counsel and legal aid  4) 10(b) rights must include detail about duty counsel and legal aid (not just the fact that they exist) (first mentioned in obiter)  So if person asks if there is Legal Aid, that is an assertion of a right to counsel – and from Bartle #1 we know that when an assertion is made, police have to stop questioning  this is a low watermark! (i.e. asking if have Legal Aid = saying “I want a lawyer”) **Bartle #2- must mention the toll free number for duty counsel if the arrest is rural 1 800 number is not required in large metropolitan areas. Form X alone will be sufficient Arrested for impaired driving after he failed a roadside breath test. NO mention was made of toll-free number for duty counsel which would have given him access to free immediate preliminary legal advice. - In addition to info that there is Legal Aid, info as to how to access Legal Aid (like 1-800 number), if it is required in that jurisdiction, must also be provided to Accused. - Although detainees can waive their 10b rights, valid waivers of the informational component of 10b will be rare- standard of that waiver is VERY high. - Police must take additional steps to ensure the understanding of those rights if there is some reason to conclude that there is no understanding (language issues, known or obvious mental disability). If the response is somewhat questioning, the fact they were cited the right is insufficient. Police have an additional obligation to make sure the accused understands the right they are being given. - You cannot assert a right if you don’t understand that you have it Pavel & Playford 2 cases mentioned briefly in class Still good law Pavel - If you call your lawyer and there is no answer – detainee is being diligent about attempting to contact a lawyer Must be given a reasonable opportunity to get in touch with lawyer – so should be permitted a second phone call Playford – You are entitled to privacy when you call/speak to your lawyer **R v Manninen- right was asserted. police should stop questioning. should  Pre Form X – so he was given a “caution to a charged person” which differs from Form X  The right to counsel under 10 includes when the right is asserted, a reasonable opportunity to exercise the right  That includes use of a nearby telephone –without the need to ask the police for use the phone (unless there is a valid reason not 24

Knoll 2015 Criminal Process Framework have let him use phone from gas station AKA – The “stupid effer” case to allow use of the phone) The obligation is on the police to provide a phone to use without the need to ask to use a phone at first reasonable opportunity. No justification for delaying opportunity to contact counsel until arrival at the station unless exigent circumstances.  Once the right is asserted to have a lawyer, the police must stop questioning. STOP. (3 rd point from Bartle) S. 10(b) imposes on the police a duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel . The purpose of this right is to allow the detainee not only to be informed of his rights and obligations under the law, but equally if not more important, to obtain advice as to how to exercise those rights.  The accused has the right not to be asked questions after s/he has asserted those rights  The right to retain and instruct counsel w/out delay … correlative obligation upon the police authorities to facilitate contact w/ counsel.  While a person may implicitly waive his right under s. 10(b), the standard will be very high : Continuing to talk after asserting the right does not imply a waiver Important : 1. The police have an obligation to provide informational rights 2. The police must provide the individual with a reasonable opportunity to exercise the right if it is asserted. 3. The police must provide access to a telephone that is in close proximity if that telephone is available to use. They must provide even if accused does not request specifically to use the phone. Can’t wait to get to station 4. They must cease questions with respect to any manner where incriminating evidence might be obtained. 5. Just because an individual keeps talking to the police when he’s asserted his rights earlier, does not constitute a waiver *Baig- do not need to force accused to assert rights, enough to give them their rights) Said nothing in this case = waiver  There is an obligation on the accused to assert their rights once they have been informed of them  There are no correlative duties imposed on the police until the accused asserts their rights. If the detainee does not assert the right the police may continue investigate and question the detainee without violation of section 12 *Leclair v R – kid who called at 2:00am, but did not call another lawyer  not a waiver 3 youths arrested at night for BE. Given right, they assert it by making phone call but there is no answer. At that point, accused said I don’t want to call again; I will call in the morning. Police then take him to lineup where - Police violated right. Not reasonable a phone call at 2 am does not do it. Police should have waited until the next morning, so that he could phone again. (1) Reasonable opportunity to exercise right - Accused or detained persons have a right to choose their counsel & it’s only if the lawyer chosen can’t be available w/n a reasonable time that the detainee or the Accused should be expected to exercise the right to counsel by calling another lawyer (2) Refraining from taking further steps - This means that once an Accused or detained person has asserted that right, the police can’t in any way compel him to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right (unless there is urgency or other compelling reason to justify proceeding) (3) A reasoned approach to contacting counsel with respect to section 10b rights, is necessary and circumstances driven – an allowed 2AM call to counsel is not reasonable compliance (4) Eliciting evidence from a detainee means any form of elicitation (verbal or otherwise) 25

Knoll 2015 Criminal Process Framework he is identified *R v Burlingham- (police bad mouthed his counsel, made plea bargain without counsel, he kept requesting counsel) Accused arrested for murder- Over 3 day period he was systematically questioned but he kept asking for a lawyer. Police urged him to reveal what he knew about the crime - saying delay would hurt his parents; said counsel was dumb and not trustworthy. He finally confessed. Analysis Was there a denial of the accused’s right to counsel?  Several ways in which the appellant’s right to counsel was denied: o First, the police continually questioned him despite his repeated statements that he would say nothing absent consultation with his lawyer. o Second s. 10(b) specifically prohibits the police as they did in this case from belittling the accused’s lawyer with the express goal of undermining the accused’s confidence in and relationship with defence counsel o Third the improper conduct by the police regarding the plea bargain also amounted to an infringement of s. 10(b)  Although 10(b) does not guarantee the accused the right to counsel of his choice at all times , in this case the offer should have been made when the accused’s lawyer was available or left open for a reasonable period of time. It is a constitutional infringement to place such an offer directly to an accused unless accused has expressly waived the right to counsel. When it is evident that there is a misunderstanding of the full content of the right to counsel. The police cannot rely on a mechanical recitation of the right to counsel to discharge their duties under s. 10(b). They must take positive steps to facilitate that understanding.  In this case, the police actually created that misunderstanding. In the case at bar there was no urgency to the matter. Mere expediency or efficiency is not sufficient to create enough “urgency” to permit a s. 10(b) breach. Class Notes  Derivative evidence – “I threw the gun in the swamp over there” – if you exclude the incriminating statement, can you still bring in the gun? – the gun would be derivative evidence. “Fruit of the poison tree is out” Cannot bring in the derivative evidence. Both are excluded – unless good and common policing would have uncovered the gun on its own (aka “ otherwise discoverable ”) Waiver and Duty to be Reasonably Diligent in Exercise of Right Clarkson (aware of consequences test) Facts: Accused was very intoxicated when she was charged with her husband’s murder. She was given the customary police warning and informed of her right to counsel. She said there was “no point” in having counsel and underwent police questioning while still drunk and very emotional. Questioning continued in spite of the efforts of an Aunt to convince the accused to stop talking until counsel was present. Trial judge excluded her statements; CA found that was an error and ordered a new trial. Analysis  Given the concern for fair treatment of an accused person, which underlies the liberties given in s. 10(b) of the Charter, it is evident that any alleged waiver of this right by an accused must be carefully considered and that the accused’s awareness of the consequences of what he was saying is crucial.  Must pass some form of “awareness of the consequences test”  At the very minimum it was incumbent upon the police to delay their questioning and the taking of the appellant’s statement until she was in a sufficiently sober state to properly exercise her right to retain and instruct counsel or be fully aware of the consequences of waiving this right.  If the accused is not truly aware of the consequences of what they are doing, no true waiver will take place Smith – would not call lawyer because of time (9pm) - then says he will Facts: The accused was arrested at his home around 7pm on a charge of robbery and informed of his right to retain and instruct counsel. Accused requested the opportunity to communicate with his lawyer and the police gave him access to a telephone & telephone book. Because of the hour and the only number in the telephone book was the office number the accused decided not to 26

Knoll 2015 Criminal Process Framework talk off the record . call he would contact a lawyer in the morning. The police suggested he try to make the call and he refused. The police kept bringing him in for questioning and he repeated he wanted to speak to his lawyer. He finally made a statement specifying that it was made “off the record”. Analysis  In these circumstances, police were justified in continuing their questioning and to act as they did. Duties imposed on the police by s. 10(b) were suspended when the arrested or detained person is not reasonably diligent in the exercise of his rights .  His decision to not even try to contact his lawyer is fatal in my view and prevents him from establishing that he was reasonably diligent in the exercise of his rights.  The burden of proving that it was impossible for him to communicate with his lawyer when the police offered him the opportunity to do so was on the appellant.  An arrested person who has been given reasonable opportunity to communicate with counsel but who was not diligent in the exercise of this right cannot, subsequently require the police to suspend one more time the investigation or questioning.  However if the circumstances have changed then he can (i.e. from lesser charge to higher one) 1. The accused must be reasonably diligent in exercising the 10b rights a) The accused must assert the right b) After asserting the right, take reasonable steps to act on it (make the call) 2. A refusal to even try to contact counsel will allow for further police questioning Distinguished LeClair case – in LeClair at least tried to call a lawyer but had failed in the attempt ***R v. Sinclair (no second consult + 2x3 minute with lawyer sufficient) Arrested for murder, advised of rights and spoke with lawyer. Questioned by police kept asking for lawyer. Police told accused he did not have to speak to police but did not have the right to have a lawyer present.  Purpose of 10(b) is to support detained right to choose whether to cooperate with police or not  Two three minute calls to a lawyer is sufficient for s. 10(b) o Nothing improper about two three minute calls. They may find one three-minute call may be sufficient too.  Does not create/confer constitutional right to have counsel present during police questioning.  No right under s. 10(b) to a secondary consultation UNLESS significant change in circumstances. o Change in jeopardy (charge changes from manslaughter to murder, police want the accused in a lineup) i.e. victim dies o New or emergent circumstances o Requires change in circumstances that choice faced by accused has been significantly altered Right to Silence Crown must prove that the statement is VOLUNTARILY given A. Voluntary Confession Rule: Officers given that caution.  Ibrahim  Crown must prove statement voluntary, then its admissible  voluntariness was said to be established objectively by the simple absence of threats and promises  Hebert says this is too narrow. o Judges thought under this rule they could exclude evidence if it would bring the administration of justice into disrepute 27

Knoll 2015 Criminal Process Framework o Common law caution comes from this case  Wray  Overruled traditional view, would not allow judges to exercise their discretion, the only consideration was whether the statement was voluntary (in the Ibrahim sense). Could not exclude derivative evidence.  Rothman  Statement to undercover officer admissible, because a judge could not disapprove the statement solely because he disapproved of the method by which it was obtained. All eclipsed by Herbert Complex Amalgam makes up confessions law: 1) 10b of the Charter 2) Common Law Confessions Rule 3) S.7 of the Charter (right to silence) B. Principles of Fundamental Justice (Charter s.7) **R v Hebert – undercover officer engaged accused in conversation (in cells) after right was asserted Accused was arrested for robbery. Advised of right to retain and instruct counsel and was taken to the police station. Contacted counsel, was advised regarding his right to refuse to give a statement and in a interview with police he indicated he did not want to make a statement. Officer posed as suspect under arrest. While in cell officer engaged accused in convo- accused made incriminating statements.  Self-Incrimination  right of every person not to be required to produce evidence against himself – nemo tenetur seipsum accusare  The right to choose whether to speak to the authorities is defined objectively rather than subjectively . The basic requirement that the suspect possess an operating mind has a subjective element. o was the suspect accorded the right to counsel o was there other police conduct which effectively and unfairly deprived the suspect of the right to choose whether to speak to the authorities or not Limitations:  First, there is nothing in the rule to prohibit police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will have informed the accused of the right to remain silent. If the police officers are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the charter. Police persuasion short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence.  Second, it applies only after detention . Undercover operations prior to detention do not raise the same considerations.  Third, the right to silence predicated on the suspects right to choose freely whether to speak to the police or to remain silent does not affect voluntary statements made to fellow cellmates . The violation of the suspects’ rights occurs only when the Crown acts to subvert the suspect’s constitutional right to choose not to make a statement to the authorities.  Fourth, a distinction must be made between the use of undercover agents to observe the suspect and the use of undercover agents to actively elicit information in violation of the suspect’s choice to remain silent.  The essence of the right to silence is that the suspect be given a choice: the choice is quite simply the freedom to choose – the freedom to speak to the authorities on the one hand and the freedom to refuse to make a statement to them on the other. Important Information: 1) The right to silence has it roots in CL but is now constitutionally grounded in s. 7 of the Charter. All rights are not necessarily subsumed into s. 7 but are grounded in it (Oickle says voluntary confession rule is greater than Charter – goes to people before detention). 2) The right to silence and retain counsel under s. 10(b) are directly connected. o Unless given s.10(b) rights don’t know right to be silent/choose 3) The right to silence is one conceptually to make choices. o When you analyze a fact pattern – was the choice taken away – was the individual allowed an option or placed in circumstances where they thought they had no choice. 28

Knoll 2015 Criminal Process Framework 4) The narrow confession rule in Ibrahim, Wray and Rothman (still shock test) is overturned 5) The voluntary confession rule is broadened to include the 4 rules (these are CORE to the right to silence) 6) The Right to silence includes a right of choice to speak to the police or not – And fairness and integrity in the implementation of justice is a lawful consideration 7) The right to silence includes section 7 and section 10b read together R v. Nedelcu (s. 13 of Charter diminished re incriminating evidence) Facts: N crashed motorcycle which killed victim; charged criminally and sued civilly. At discovery (compelled) N said he recalled nothing but at criminal trial had full memory; Crown questioned on prior statements  An accused is not compellable to give evidence against him or herself in a criminal proceeding (s. 11 of the Charter)  If an accused gives evidence (not incriminating) under oath at an earlier criminal or civil proceeding, that evidence might be admissible against an accused to impeach credibility or for other purposes. Section 13 of the Charter has been diminished. Turcotte- right to common law silence pre arrest Go to my ranch case  Right to silence = exercise of right cannot be used as evidence against the accused and is not admissible  A ToF may not infer anything from an accused’s decision to assert the right  There are some exceptions to this: 1. Alibi evidence (not given within a reasonable and prudent time) 2. Where silence is relevant to defense theory of mistaken identity 3. Where defense seeks to emphasize accused’s cooperation with authorities C. Silence at Trial R v Noble- cannot draw inference from accused not testifying in court Implications From Silence Expired driver’s license case  The right to silence requires trial judges not to use the silence of the accused in any way, with respect to the accused exercising the right – no adverse inferences are ever to be drawn (although it can be noted that evidence went uncontradicted)  It is not permissible to use the failure to testify as a piece of evidence contributing to a finding of guilt beyond a reasonable doubt where such a finding would not exist w/o considering the failure to testify.  However, where silence is mentioned by the trial judge as confirmatory of guilty given the totality of the evidence, but not as a “make-weight”, there’s no reversible error.  Alibi defences create exceptions to the right to silence = the failure of the Accused at trial to testify and expose himself to cross- examination on the alibi defence may be used to draw an adverse inference about the credibility of the defence  Use of silence to help establish guilt beyond a reasonable doubt is contrary to the rationale behind the right to silence Summary = The accused’s silence may (1) confirm prior findings of guilt beyond a reasonable doubt (evidence remains uncontradicted) and (2) remind triers of fact that they need not speculate about unstated defences. R v. Prokofiew Facts: Prokofiew and Solty tried together as co-accused for fraud. Invitation to convict Prokofiew on failure to testify, TJ did not make remedial instruction  TJ can make a positive comment with respect to the accused’s right to silence in the context of a trial.  They cannot make a prejudicial comment in the context of s. 4(6) – but it does not forbid them from mentioning it at all D. Re-stated Voluntary Confession Rule ****R v Oickle- The Contemporary Confessions Rule 29

Knoll 2015 Criminal Process Framework polygraph, oppression, police trickery OK Underwent polygraph, confessed to setting fire to his fiancée’s car and provided police with statement. He was arrested, and informed he could call lawyer but not to go home. Voluntary Confessions Rule Restated  CL confessions rule is well-suited to protect against false confessions; While the overriding concern of the rule is with voluntariness, this concept overlaps with reliability  A confession that is not voluntary will often be unreliable  Trial judge should consider all the relevant factors when reviewing a confession Threats or Promises = Core of the confessions rule from Ibrahim (fear of prejudice or hope of advantage)  Statements are inadmissible if they were the result of fear of prejudice or hope of advantage  Hope of advantage = prospect of leniency in charge or sentence; offer of psychiatric assistance or counseling  The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise Oppression  2 possible effects of oppressive conduct by police: (a) suspect may make a confession to escape those conditions and (b) oppressive circumstances could overbear the suspect’s will to the point that he comes to doubt his own memory  R v. Hoilett (1999): A charged with sexual assault, was arrested at 11:30pm, while under the influence of cocaine. After two hours in a cell, two officers removed his clothes for forensic testing and he was left naked in a cell with a metal bunk. 1.5 hours later, he was provided with light clothes but then awakened at 3am. A stated that he hoped that if he talked to the police they would give him some warm clothes and cease the interrogation. CA concluded that the statements were involuntary Under inhumane conditions, one can hardly be surprised if a suspect confesses purely out of a desire to escape those conditions Such a confession is not voluntary  Factors that can create an atmosphere of oppression (not exhaustive) are: depriving the suspect of food, water, clothing, sleep, medical attention; denying access to counsel; excessively aggressive, intimidating questioning for a prolonged period of time  Final possible source of oppressive conditions is the police use of non-existent evidence; when combined with other facts, certainly a relevant consideration Operating Mind  The operating mind requirement doesn’t imply a higher degree of awareness than knowledge of what the Accused is saying and that he is saying it to police officers who can use it to his detriment  Like oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule  Statements rae inadmissible if they are “not voluntary in the ordinary English sense of the word because they were induced by other circumstances such as existed in the present case” Other Police Trickery = this doctrine is a distinct inquiry  More specific objective is maintaining the integrity of the criminal justice system  The police can use trickery, but can’t use conduct that shocks the community. Ex: PO pretending to be a chaplain or legal aid lawyer or injecting truth serum into a diabetic under the pretence that it was insulin  Rothman still good law; there may be situations in which police trickery, though neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community Relevance of the Polygraph Test  Informing the Suspect of the Uses to Which the Polygraph Test can be Put Merely failing to tell a suspect that the polygraph is inadmissible won’t automatically produce an involuntary confession 30

Knoll 2015 Criminal Process Framework Courts should engage in a two step process  Following Rothman/Collins, the confession should be excluded if the police deception shocks the community  Exaggerating the Polygraph’s Validity-OK! Summary  Confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness  If police subject the suspect to utterly intolerable conditions or if they offer inducements strong enough to produce an unreliable confession the trial judge should exclude it  Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions  Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right to silence, this Court’s jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. if a confession is involuntary for any of these reasons, it is inadmissible. *R v Singh I can talk till you squawk Accused was arrested for 2 nd degree murder in respect of shooting death of innocent bystander killed by a stray bullet. During two subsequent interviews with police, accused state numerous times that he did not want to talk about the incident and he wished to return to his cell. Interviewing officer persisted in trying to get him to make a statement, officer testified he intended to put the police case before the accused in attempt to get him to confess, no matter what . Accused asserted his right to silence 18 times before making admissions , although never confessed to crime. Police officer talks persons ear off not in oppressive way- wore person down.= court said NOT oppressive!!!!!!!! Cory J  The modern expansive view of the confessions rule clearly includes the right of the detained person to make a meaningful choice whether or not to speak to state authorities .  The test is an objective one, but the individual characteristics of the accused are obviously relevant considerations in applying this objective test.  In such circumstances, the confessions rule effectively subsumes the constitutional right to silence because the two tests are functionally equivalent. It follows that, where a statement has survived a thorough inquiry into voluntariness, the accused’s Charter application alleging that the statement was obtained in violation of the pre-trial right to silence under s. 7 cannot succeed.  It is not appropriate to impose a rigid requirement that police refrain from questioning a detainee who states that he or she does not wish to speak to police. Such an approach would overshoot the protection afforded to the individual’s freedom of choice both at common law and under the Charter. More importantly, this approach ignores the state interest in the effective investigation of crime. The critical balancing of state and individual interests lies at the heart of this Court’s decision in Hebert and in subsequent s. 7 decisions. There is no reason to depart from these established principles.  Under both the common law and Charter rules, police persistence in continuing an interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that the subsequently obtained statement was not the product of a free will to speak to authorities. The trial judge in this case was very much alive to this risk. His ultimate judgment call on this issue is supported by the record and is entitled to deference. There is thus no reason to interfere with his ruling on admissibility. Dissent: (Binnie, Lebel, Fish and Abella)  The impugned statements were obtained in violation of the accused’s s. 7 right to silence.  The interrogator understood very well that the accused had chosen not to speak with the police but nonetheless disregarded the accused’s repeated assertions of his right to silence.  While detainees who have asserted their right to silence are entitled to change their minds, they cannot be compelled to do so by the persistent disregard of that asserted choice. The right to silence, like the right to counsel, is a constitutional promise that must be kept.  There is no evidence to support the proposition that requiring the police to respect a detainee’s right of silence, once it has been unequivocally asserted, would have a “devastating impact” on criminal investigations anywhere in this country.  The rationale of the enhanced confessions rule adopted in Oickle is distinct from the purposes served by the Charter. 31

Knoll 2015 Criminal Process Framework Other *R v Law- Plain View Doctrine Facts: The accused operated a restaurant in Moncton. A locked safe belonging to the accused was reported stolen in a break and enter. It was later recovered by police in a field. It had been opened. The police conducted a theft investigation, placing the safe in an exhibit room. Before returning the safe the accused, an officer not involved in the investigation of the theft but who was keeping a file named “Asian crimes” and suspected the accused of tax violations, photocopied some financial documents found in the safe. He fwd the photocopies to Revenue Canada. The Crown brought summary conviction proceedings against the accused under the Excise Tax Act for eight contraventions of the reporting requirements and ob the obligation to remit taxes. The trial judge ruled that the photocopying of the documents was an unreasonable search under s. 8 of the Canadian Charter of Rights and Freedoms, and that the photocopies should be excluded under s. 24(2). The trial judge acquitted the accused of all charges. The Court of Queen’s Bench upheld the trial judge’s decision but the majority of the New Brunswick Court of Appeal allowed the Crown’s appeal. The SCC allowed the accused’s appeal. Law Test – “Plain View Doctrine”  discovered by a lawfully positioned officer  it has to be in plain view of the officer  it has to be discovered inadvertently (unaided senses, no technology) If an officer disregards what he knows to be his authority it will be a more serious breach REP is raised here in somewhat exceptional circumstances adoption of plain view doctrine is covered here – ties into Godoy *R v Fearon 2014 SCC – Cell phone searches Facts: Two men rob merchant, police locate & secure vehicle and arrest F & C. Found cell phone in F’s pocket while patting him down. Police search phone and find a draft text message saying “they did it” and some photos of a handgun. Day and a half later the police get warrant to search the vehicle and find the handgun. Months later they police apply and are granted a warrant to search the phone. Trial judge found search of phone was incident to arrest and thus no s.8 Charter breach. SCC upholds this: Fearon Conditions to make cell phone search comply with s.8 of Charter 1. Arrest must be lawful 2. Search must be truly incidental to arrest – strictly applied! 3. Nature and extent of search must be tailored to its purpose (so generally only recent texts, emails, photos, call logs can be used) 4. Police must take detailed notes of what/why they examined the phone 32