Special Issues with Right to Counsel and Gaming House Warrants: Difference between pages

From Criminal Law Notebook
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==General Principles==
==Legislation==
Where there has been a breach of s. 10(b) right for a statement and then a later statement was taken that on its face may not be an independent breach, the subsequent breach may still be "tainted" by the earlier breach allowing for a potential remedy under s. 24(2).<ref>''R v Wittwer'', [http://canlii.ca/t/1x3lx 2008 SCC 33] (CanLII){{perSCC|Fish J}} at para 21</ref>
 
The court have adopted a "purposive and generous approach" when considering tainting by earlier Charter breaches. The accused does not need to establish a strict causal relationship between the breach and subsequent statement. The statement is tainted where the breach and subsequent statement were "part of the same transaction or course of conduct.<ref>Strachan{{supra}} at p. 1005</ref> The connection is "temporal, contextual, causal, or combination of the three."<ref>
''R v Plaha'', [http://canlii.ca/t/1hq89 2004 CanLII 21043] (ONCA){{perONCA|Doherty JA}} at para 45</ref>
 
A "remote" or "tenuous" connection is not sufficient.<ref>
''R v Goldhart'', [http://canlii.ca/t/1fr8m 1996 CanLII 214] (SCC), [1996] 2 SCR 463{{perSCC|Sopinka J}} at para 40<br>
R v Plaha at para 45<br>
</ref>
 
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==Communication Difficulties==
Where a detainee may not understand the information being told to them, it cannot be resolved by simply reading the standard text.<ref> ''R v Evans'', [http://canlii.ca/t/1fsml 1991 CanLII 98] (SCC), [1991] 1 SCR 869{{perSCC|McLachlin J}} at para 21</ref>
 
Limited signs of comprehension of English can be enough for the court to find that the accused did not understand his rights.<ref> See ''R v Brissonnet'', [http://canlii.ca/t/1mhxz 2006 ONCJ 31] (CanLII){{perONCJ|Harris J}}</ref>
 
Where the officer is aware that the person's first language is not English, then they should be cautious and slow when going through the instructions.<ref>''R v Prodan'', [http://canlii.ca/t/1tvjr 2007 ONCJ 551] (CanLII){{perONCJ|Armstrong J}} - officer heard accent, went very fast through caution</ref>
 
It should only be in exceptional circumstances where the officer is under an obligation to arrange for an interpreter to ensure that they understand their rights.<ref>''R v Liagon'', [http://canlii.ca/t/fqr73 2012 ABPC 56] (CanLII){{perABPC|Shriar J}}</ref>
 
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=="Fresh Start" to Correct Errors==
 
Where police realize that they made a "constitutional mis-step" in their procedure comply with s. 10(a) or (b) Charter rights, the police can engage in a "fresh start" to rehabilitate the process. <ref>
''R v Manchulenko'', [http://canlii.ca/t/g0c6f 2013 ONCA 543] (CanLII){{perONCA|Watt JA}}<br>
R v ET (1993), [http://canlii.ca/t/1frxz 1993 CanLII 51] (SCC), 86 CCC (3d) 289 (SCC){{perSCC|Sopinka J}}<br>
''R v Karafa'', [http://canlii.ca/t/g70t7 2014 ONSC 2901] (CanLII){{perONSC|Trotter J}}<Br>
</ref>
This process can have the effect of "severing" the link between the original tainted evidence and the new evidence obtained after the fresh start.<ref>
{{supra1|Manchulenko}}
</ref>
This severance will come into play at the s. 24(2) contextual Charter analysis.<ref>
{{supra1|Manchulenko}}
</ref>
 
The "fresh start" principle applies not only to successive statements to persons in authority.<ref>
{{supra1|Mancheulenko}} ("No principled reason exists to confine the "fresh start" jurisprudence to cases involving successive statements made to persons in authority. The rationale that underpins the "fresh start" principle is the same irrespective of the specific form the evidence proposed for admission takes.")<br>
</ref>
 
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==Young Persons==
Section 25(1) of the YCJA gives the youth a right to retain and instruct counsel without delay.<ref>[http://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html YCJA]</ref>
{{quotation|
; Right to counsel
25 (1) A young person has the right to retain and instruct counsel without delay, and to exercise that right personally, at any stage of proceedings against the young person and before and during any consideration of whether, instead of starting or continuing judicial proceedings against the young person under this Act, to use an extrajudicial sanction to deal with the young person.
; Arresting officer to advise young person of right to counsel
(2) Every young person who is arrested or detained shall, on being arrested or detained, be advised without delay by the arresting officer or the officer in charge, as the case may be, of the right to retain and instruct counsel, and be given an opportunity to obtain counsel.
; Justice, youth justice court or review board to advise young person of right to counsel
(3) When a young person is not represented by counsel
:(a) at a hearing at which it will be determined whether to release the young person or detain the young person in custody prior to sentencing,
:(b) at a hearing held under section 71 (hearing — adult sentences),
:(c) at trial,
:(d) at any proceedings held under subsection 98(3) (continuation of custody), 103(1) (review by youth justice court), 104(1) (continuation of custody), 105(1) (conditional supervision) or 109(1) (review of decision),
:(e) at a review of a youth sentence held before a youth justice court under this Act, or
:(f) at a review of the level of custody under section 87,
the justice or youth justice court before which the hearing, trial or review is held, or the review board before which the review is held, shall advise the young person of the right to retain and instruct counsel and shall give the young person a reasonable opportunity to obtain counsel.
; Trial, hearing or review before youth justice court or review board
(4) When a young person at trial or at a hearing or review referred to in subsection (3) wishes to obtain counsel but is unable to do so, the youth justice court before which the hearing, trial or review is held or the review board before which the review is held
:(a) shall, if there is a legal aid program or an assistance program available in the province where the hearing, trial or review is held, refer the young person to that program for the appointment of counsel; or
:(b) if no legal aid program or assistance program is available or the young person is unable to obtain counsel through the program, may, and on the request of the young person shall, direct that the young person be represented by counsel.
; Appointment of counsel
(5) When a direction is made under paragraph (4)(b) in respect of a young person, the Attorney General shall appoint counsel, or cause counsel to be appointed, to represent the young person.
; Release hearing before justice
(6) When a young person, at a hearing referred to in paragraph (3)(a) that is held before a justice who is not a youth justice court judge, wishes to obtain counsel but is unable to do so, the justice shall
:(a) if there is a legal aid program or an assistance program available in the province where the hearing is held,
::(i) refer the young person to that program for the appointment of counsel, or
::(ii) refer the matter to a youth justice court to be dealt with in accordance with paragraph (4)(a) or (b); or
:(b) if no legal aid program or assistance program is available or the young person is unable to obtain counsel through the program, refer the matter without delay to a youth justice court to be dealt with in accordance with paragraph (4)(b).
; Young person may be assisted by adult
(7) When a young person is not represented by counsel at trial or at a hearing or review referred to in subsection (3), the justice before whom or the youth justice court or review board before which the proceedings are held may, on the request of the young person, allow the young person to be assisted by an adult whom the justice, court or review board considers to be suitable.
; Counsel independent of parents
(8) If it appears to a youth justice court judge or a justice that the interests of a young person and the interests of a parent are in conflict or that it would be in the best interests of the young person to be represented by his or her own counsel, the judge or justice shall ensure that the young person is represented by counsel independent of the parent.
; Statement of right to counsel
(9) A statement that a young person has the right to be represented by counsel shall be included in
:(a) any appearance notice or summons issued to the young person;
:(b) any warrant to arrest the young person;
:(c) any promise to appear given by the young person;
:(d) any undertaking or recognizance entered into before an officer in charge by the young person;
:(e) any notice given to the young person in relation to any proceedings held under subsection 98(3) (continuation of custody), 103(1) (review by youth justice court), 104(1) (continuation of custody), 105(1) (conditional supervision) or 109(1) (review of decision); or
:(f) any notice of a review of a youth sentence given to the young person.
; Recovery of costs of counsel
(10) Nothing in this Act prevents the lieutenant governor in council of a province or his or her delegate from establishing a program to authorize the recovery of the costs of a young person’s counsel from the young person or the parents of the young person. The costs may be recovered only after the proceedings are completed and the time allowed for the taking of an appeal has expired or, if an appeal is taken, all proceedings in respect of the appeal have been completed.
; Exception for persons over the age of twenty
(11) Subsections (4) to (9) do not apply to a person who is alleged to have committed an offence while a young person, if the person has attained the age of twenty years at the time of his or her first appearance before a youth justice court in respect of the offence; however, this does not restrict any rights that a person has under the law applicable to adults.
 
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The basic adult rights regarding counsel are still in effect for a youth.  However, section 146 creates additional benefits upon the young accused and obligations upon the police when providing the right to counsel. The additional rights not otherwise available to adults include:
* the youth will be given a reasonable opportunity to consult with a parent or responsible adult
* any statement ''must'' be given in front of a lawyer and parent or responsible adult unless the right is waived;
* the waiver of this right must be audio or video taped or be in writing.
 
Proof of compliance with these standards is proof beyond a reasonble doubt.<ref>
''R v LTH'', [http://canlii.ca/t/20m8f 2008 SCC 49] (CanLII), [2008] 2 SCR 739{{perSCC|Fish J}}
</ref>
 
The reason for these additional protections and high standard of proof on the Crown is because of the constitutional requirement of a separate system arising from the youth's reduced moral blameworthiness and culpability.<ref>R v DB [http://canlii.ca/t/1wxc8 2008 SCC 25] (CanLII){{perSCC|Abella J}}</ref> More to the point, youths are "far more easily impressed and influenced by authoritarian figures".<ref>
R v JTJ [http://canlii.ca/t/1fssq 1990 CanLII 85] (SCC), [1990] 2 SCR 755{{perSCC|Corey J and Sopinka J}} at p. 766</ref>
 
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==Foreign Nationals==
Upon arrest of a foreign national, the accused has a right to contact the consul of his native country pursuant to Article 36 of the Vienna Convention which states:
{{quotation|
{{quotation|
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
; Warrant to search
:(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
199. (1) A justice who is satisfied by information on oath that there are reasonable grounds to believe that an offence under section 201, 202, 203, 206, 207 or 210 is being committed at any place within the jurisdiction of the justice may issue a warrant authorizing a peace officer to enter and search the place by day or night and seize anything found therein that may be evidence that an offence under section 201, 202, 203, 206, 207 or 210, as the case may be, is being committed at that place, and to take into custody all persons who are found in or at that place and requiring those persons and things to be brought before that justice or before another justice having jurisdiction, to be dealt with according to law.
:(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;
<br>
:(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.<br>
'''Search without warrant, seizure and arrest'''<br>
(2) A peace officer may, whether or not he is acting under a warrant issued pursuant to this section, take into custody any person whom he finds keeping a common gaming house and any person whom he finds therein, and may seize anything that may be evidence that such an offence is being committed and shall bring those persons and things before a justice having jurisdiction, to be dealt with according to law.
<br>
; Disposal of property seized
(3) Except where otherwise expressly provided by law, a court, judge, justice or provincial court judge before whom anything that is seized under this section is brought may declare that the thing is forfeited, in which case it shall be disposed of or dealt with as the Attorney General may direct if no person shows sufficient cause why it should not be forfeited.
<br>
'''When declaration or direction may be made'''<br>
(4) No declaration or direction shall be made pursuant to subsection (3) in respect of anything seized under this section until
:(a) it is no longer required as evidence in any proceedings that are instituted pursuant to the seizure; or
:(b) the expiration of thirty days from the time of seizure where it is not required as evidence in any proceedings.


2.         The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.
; Conversion into money
|[http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf VC]}}
(5) The Attorney General may, for the purpose of converting anything forfeited under this section into money, deal with it in all respects as if he were the owner thereof.
<br>
; Telephones exempt from seizure
(6) Nothing in this section or in section 489 authorizes the seizure, forfeiture or destruction of telephone, telegraph or other communication facilities or equipment that may be evidence of or that may have been used in the commission of an offence under section 201, 202, 203, 206, 207 or 210 and that is owned by a person engaged in providing telephone, telegraph or other communication service to the public or forming part of the telephone, telegraph or other communication service or system of that person.
<br>
; Exception
(7) Subsection (6) does not apply to prohibit the seizure, for use as evidence, of any facility or equipment described in that subsection that is designed or adapted to record a communication.
<br>
R.S., 1985, c. C-46, s. 199; R.S., 1985, c. 27 (1st Supp.), s. 203; 1994, c. 44, s. 10.
|[http://canlii.ca/t/7vf2#sec199 CCC ]
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Revision as of 21:03, 1 February 2019

Legislation

Warrant to search

199. (1) A justice who is satisfied by information on oath that there are reasonable grounds to believe that an offence under section 201, 202, 203, 206, 207 or 210 is being committed at any place within the jurisdiction of the justice may issue a warrant authorizing a peace officer to enter and search the place by day or night and seize anything found therein that may be evidence that an offence under section 201, 202, 203, 206, 207 or 210, as the case may be, is being committed at that place, and to take into custody all persons who are found in or at that place and requiring those persons and things to be brought before that justice or before another justice having jurisdiction, to be dealt with according to law.
Search without warrant, seizure and arrest
(2) A peace officer may, whether or not he is acting under a warrant issued pursuant to this section, take into custody any person whom he finds keeping a common gaming house and any person whom he finds therein, and may seize anything that may be evidence that such an offence is being committed and shall bring those persons and things before a justice having jurisdiction, to be dealt with according to law.

Disposal of property seized

(3) Except where otherwise expressly provided by law, a court, judge, justice or provincial court judge before whom anything that is seized under this section is brought may declare that the thing is forfeited, in which case it shall be disposed of or dealt with as the Attorney General may direct if no person shows sufficient cause why it should not be forfeited.
When declaration or direction may be made
(4) No declaration or direction shall be made pursuant to subsection (3) in respect of anything seized under this section until

(a) it is no longer required as evidence in any proceedings that are instituted pursuant to the seizure; or
(b) the expiration of thirty days from the time of seizure where it is not required as evidence in any proceedings.
Conversion into money

(5) The Attorney General may, for the purpose of converting anything forfeited under this section into money, deal with it in all respects as if he were the owner thereof.

Telephones exempt from seizure

(6) Nothing in this section or in section 489 authorizes the seizure, forfeiture or destruction of telephone, telegraph or other communication facilities or equipment that may be evidence of or that may have been used in the commission of an offence under section 201, 202, 203, 206, 207 or 210 and that is owned by a person engaged in providing telephone, telegraph or other communication service to the public or forming part of the telephone, telegraph or other communication service or system of that person.

Exception

(7) Subsection (6) does not apply to prohibit the seizure, for use as evidence, of any facility or equipment described in that subsection that is designed or adapted to record a communication.
R.S., 1985, c. C-46, s. 199; R.S., 1985, c. 27 (1st Supp.), s. 203; 1994, c. 44, s. 10.


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