Week 11/12
Charter Provisions and Procedures -
Making an arrest and arrest procedures -
How do we actually make an arrest?
No real procedure exists in any one source of law.
Two separate sources combined to set out the ‘advised’ procedures.
1 - charter of rights and freedoms
2 - case law
Charter (fed stat) -
#1 law in Canada
Supersedes all law
Means: if any law raises an issue with Charter the Charter supersedes the law . (c.c.
cdsa, hta, tpa, ycja)
Charter creates 2 general procedures for arrest/detention -
Section 10A -
Everyone arrest/det
Has the right to be informed promptly for reason for arrest/det.
Must give reason why being arrested.
why
Section 10B -
Everyone arrest
arrest/det has the right to retain/instruct counsel without delay (must be advise of
this).
Call a lawyer.
Lawyer
What if you don’t tell the accused about section 10a and 10b?
CHARTER VIOLATION
Consequences?
Possible exclusion of evidence obtained after the violation.
(physical evid, confession)
All evidence after the violation will be lost.
, The violation does not constitute automatic exclusion.
Who decides if the evidence will be excluded?
Judge
2 criteria (things) to help judge decide
Sections 24(2) Charter Case Law (R v Collins 1987)
Section 24(2) Charter -
If the violation would ‘bring the administration of Justice into disrepute’ the exclusion is
necessary.
If not the evidence is admitted.
Bring the administration of justice into disrepute -
Cause the public to lose their confidence in the legal system (outrage/shock)
Public lose their shit (mind).
Case Law (R v Collins 1987) -
Physical items ‘should’ usually be admitted. Ie weapons, clothing etc.
Evidence from the BG ‘should’ usually be inadmissible. Ie, confessions, blood, breath.
If the evidence was not accessible without the Bg then it should be thrown out.
Summary -
What is the worst consequence of a Charter 10A , 10B violation?
Exclusion of evidence.
No criminal or civil liability.
Case Study -
You (police) arrest Fred for assault. You do not inform him of the reason for the arrest
or his rights to counsel. At trial the judge rules you violated, section 10A and 10B of the
Charter.
Can you be charged criminally?
No
Can you be sued civilly?
No
Charter Provisions and Procedures -
Making an arrest and arrest procedures -
How do we actually make an arrest?
No real procedure exists in any one source of law.
Two separate sources combined to set out the ‘advised’ procedures.
1 - charter of rights and freedoms
2 - case law
Charter (fed stat) -
#1 law in Canada
Supersedes all law
Means: if any law raises an issue with Charter the Charter supersedes the law . (c.c.
cdsa, hta, tpa, ycja)
Charter creates 2 general procedures for arrest/detention -
Section 10A -
Everyone arrest/det
Has the right to be informed promptly for reason for arrest/det.
Must give reason why being arrested.
why
Section 10B -
Everyone arrest
arrest/det has the right to retain/instruct counsel without delay (must be advise of
this).
Call a lawyer.
Lawyer
What if you don’t tell the accused about section 10a and 10b?
CHARTER VIOLATION
Consequences?
Possible exclusion of evidence obtained after the violation.
(physical evid, confession)
All evidence after the violation will be lost.
, The violation does not constitute automatic exclusion.
Who decides if the evidence will be excluded?
Judge
2 criteria (things) to help judge decide
Sections 24(2) Charter Case Law (R v Collins 1987)
Section 24(2) Charter -
If the violation would ‘bring the administration of Justice into disrepute’ the exclusion is
necessary.
If not the evidence is admitted.
Bring the administration of justice into disrepute -
Cause the public to lose their confidence in the legal system (outrage/shock)
Public lose their shit (mind).
Case Law (R v Collins 1987) -
Physical items ‘should’ usually be admitted. Ie weapons, clothing etc.
Evidence from the BG ‘should’ usually be inadmissible. Ie, confessions, blood, breath.
If the evidence was not accessible without the Bg then it should be thrown out.
Summary -
What is the worst consequence of a Charter 10A , 10B violation?
Exclusion of evidence.
No criminal or civil liability.
Case Study -
You (police) arrest Fred for assault. You do not inform him of the reason for the arrest
or his rights to counsel. At trial the judge rules you violated, section 10A and 10B of the
Charter.
Can you be charged criminally?
No
Can you be sued civilly?
No
