Charter
section 7: Fundamental justice
R v Ahmad, 2020 SCC 11
Opportunity-based entrapment occurs where the police provide a suspect with an opportunity to commit an offence without reasonable suspicion that they are already involved in criminal activity. A stay of proceedings is the appropriate remedy.
R v Sandeson, 2020 NSCA 47
The right to make full answer and defence includes the right to advance reasonable Charter and other process-oriented responses to the charges.
R v Pascal, 2020 ONCA 287
Police have a positive duty to disclose (a) all possibly relevant information in the investigative file and (b) all obviously relevant information in their possession, even if it is not part of the “fruits of the investigation”.
Section 8: search and seizure
R v Jones, 2017 SCC 60
The defence is entitled to rely on the Crown’s theory of liability to establish standing in a s. 8 challenge – without having to call evidence.
R v Labelle, 2019 ONCA 557
The defence is entitled to rely on the Crown’s theory of liability to establish standing in a s. 8 challenge – even where contrary evidence has been called on the voir dire.
R v Golden, 2001 SCC 83
Leading case regulating the police power to conduct strip searches incident to arrest. In addition to grounds for the arrest, officers must have separate grounds to conduct the strip search, and it must be conducted reasonably.
Section 9: arbitrary arrest and detention
R v Brown, 1996 ONCA
Where the justification for a search rests on a lawful arrest, the Crown bears the burden on both section 8 *and* section 9 .
R v Dudhi, 2019 ONCA 665
Racial profiling occurs when race or racial stereotypes about offending or seriousness are used, consciously or unconsciously, to any degree in suspect selection or treatment.
R v Le, 2019 SCC 34
The race of the accused and their fear of police is relevant to the question of whether they were psychologically detained.
Section 10(a): Knowing the reason for detention
R v Nguyen, 2008 ONCA 59
Detained persons have an immediate right to know the reason why. No one should have to submit to an arrest unless they understand what it is for. Detained persons cannot meaningfully exercise the right to counsel unless they know why they were detained. Where it would have been easy to fulfill, a s. 10(a) breach is serious.
R v Bielli, 2021 ONCA 222
‘Ruse’ detentions violate s. 10(a) and 10(b) because the detained party does not know the true reason for their arrest and because they cannot meaningfully exercise the right to counsel because they are misled about their detention.
R v Zargar, 2014 ONSC 1415
Where the Crown must prove that police were acting in the lawful execution of their duty as an essential element of the offence, the accused must be acquitted if there is a reasonable doubt that the police complied with their Charter obligations. The defence does not have to bring a formal Charter application to raise this argument.
Section 10(b): Right to Counsel
R v Suberu, 2009 SCC 33
Police must immediately tell a detained person about their right to contact a lawyer. Where the detainee wishes to speak with a lawyer, police must hold off questioning until they have a reasonable opportunity to do so.
R v Rover, 2018 ONCA 745
The right to counsel is a “lifeline” for detained persons and should not be delayed during the execution of a search warrant over generic safety concerns.
R v Moore, 2016 ONCA 964
Where a detainee is charged with a new offence that increases their moral culpability, even where the maximum penalty is the same, the police are obliged to provide them with a further opportunity to consult counsel.
Section 11(b): The right to a speedy trial
R v Jordan, 2016 SCC 27
Delay is presumptively unreasonable after 18 months for cases tried in the provincial court and after 30 months for cases tried in the Superior Court of Justice.
R v Charity, 2022 ONCA 226
The only remedy for an s. 11(b) breach in the trial phase is a stay of proceedings.
R v Allison, 2022 ONCA 329
The 11(b) clock starts running when the information is sworn, not when the accused is arrested.
R v Hartling, 2020 ONCA 243
The Jordan ceilings do not apply in the sentencing phase. Delay is presumptively unreasonable 5 months after the verdict is rendered. The remedy for an 11(b) breach in the sentencing phase is a sentence reduction.
R v DA, 2018 ONCA 96
The defence is entitled to insist on essential disclosure before setting trial dates.
R v KJM, 2019 SCC 55
While the Jordan ceilings do not change for youth cases, the defendant’s age is a relevant factor in deciding whether there should be a below-ceiling stay.
Section 15: the equality guarantee
R v Turtle, 2020 ONCJ 429
Facially neutral mandatory minimum for impaired driving struck down because of discriminatory impact on members of Pikangikum First Nation. Intermittent sentences that were theoretically available to defendants not workable in practice because of distance between community and the Kenora jail.
Section 24(2): Excluding Evidence
R v Grant, 2009 SCC 32
Leading test for exclusion of evidence where it has been obtained in a manner that infringed the Charter.
R v Pino, 2016 ONCA 389
Evidence need not be obtained by the Charter-infringing state conduct as a condition precedent to exclusion under s. 24(2). Evidence may be excluded where it has a causal, temporal, or contextual connection to the Charter breach.
R v McGuffie, 2016 ONCA 365
Where the first Grant factors weigh in favour of exclusion, seldom, if ever, will the evidence be admitted.
R v Lai, 2019 ONCA 420
Misleading police testimony significantly aggravates the seriousness of the breach and pulls strongly towards exclusion. (Or: to guarantee exclusion, you’ve got to find the lie.)
R v Lauriente, 2010 BCCA 72
Judges are entitled to consider breaches of a third party’s rights in considering the seriousness of the police misconduct on the first branch of the Grant test.
Kosoian v STM, 2019 SCC 59
There is a high expectation that police know the law. Where there is uncertainty, it is incumbent on them to take reasonable steps to resolve that uncertainty by suspending their activities to seek legal advice or to consult the relevant statutory authority.
Section 24(1): Other remedies
R v Ke, 2021 ONCA 179
Test for a stay of proceedings for a breach of Charter rights.
R v Spackman, 2012 ONCA 905
A trial judge may exclude evidence that is otherwise admissible because it would render the proceedings unfair (“the Harrer discretion”).
R v Bjelland, 2009 SCC 38
Late disclosure can be excluded from evidence pursuant to s. 24(1) where (a) it creates unfairness that cannot be remedied through an adjournment or (b) exclusion is necessary to maintain the integrity of the justice system.