In Canada, every citizen has various rights set out in the Canadian Charter of Rights and Freedoms. Therefore, it is particularly critical for those charged with an offence to understand how their case may be impacted by infringement or violation of such rights. A breach of rights, such as the right to counsel, the right to be free from arbitrary detention, and the right to be free from illegal search and seizure, can significantly impact the outcome of your case.
In a recent decision, the Court of Appeal for Ontario considered whether an accused’s rights under sections 9, 10, and 11 of the Charter had been violated.
Appellant calls Crime Stoppers tip line after drug dealing partner shot and killed
In R v. Corner, the appellant was convicted of shooting and killing his friend and former partner in the drug trade on February 19, 2014. The appellant lived with his parents, and the incident occurred in the appellant’s parents’ garage. After calling 9-1-1, the appellant was taken to the police station at approximately 5:00 p.m. and was released at 3:00 a.m.
Following the homicide, the appellant told friends, family members, and police officers that the deceased had been shot and killed during a “drug rip off.” While his version of events changed, he indicated several men had “burst into the garage intent upon stealing the marihuana that he and [the deceased] had stored there”. These men, he alleged, shot and killed the deceased before leaving the scene. Seven days after the homicide, the appellant told the Crime Stoppers tip line that he had seen four men fleeing the location of the crime.
Appellant admits to killing partner, is convicted of second-degree murder at trial
Days later, police located the gun used to kill the deceased, hidden in a wooded area near the appellant’s home. The weapon was found alongside the sweater the appellant wore during the shooting. At the time of trial, the appellant had abandoned his previous versions of the “robbery story”. He admitted that he shot and killed the deceased in self-defence during a fight between them over an alleged shortfall in their joint drug sale proceeds.
At trial, the appellant told the Court that he told the “false robbery story” in fear of retaliation from the deceased’s family if he admitted to killing him. The jury convicted the appellant of second-degree murder, and the trial judge imposed a sentence of life imprisonment with no eligibility for parole for 14 years.
Appellant appeals trial judge’s decision on basis of Charter rights
The appellant appealed the conviction, arguing that the trial judge erred by:
- Failing to stay the proceedings because the appellant was denied his right to trial within a reasonable time;
- Refusing to admit specific expert evidence proffered on behalf of the appellant; and
- Admitting the appellant’s statements to the police made on the day of the homicide and the day of the appellant’s arrest.
Section 11 of the Charter: did the trial occur in a reasonable time?
Section 11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) provides that everyone who has been charged with an offence has the right to be tried within a reasonable time. The Court of Appeal acknowledged that trials in present-day Ontario take “a long and winding road from charge to verdict through the seemingly ever-increasing complexities of the criminal process.”
However, unlike most other murder cases, this trial “took a detour” through the Supreme Court of Canada for an interlocutory appeal by a third party. This “detour”, the Court of Appeal found, contributed to five months of delay in bringing the prosecution to completion. As the total amount of delay came out to just over 27 months (approximately three months less than the 30-month ceiling created by the Supreme Court in R. v. Jordan, the Court of Appeal held that the trial judge did not err when he found the appellant’s rights had not been violated under section 11(b) of the Charter.
Section 9 and 10: psychological detention inquiry
Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. Section 10 of the Charter further sets out that everyone has the right, on detention or arrest, to be promptly informed of the reasons for the detention, to retain and instruct counsel without delay, and to be informed of such rights. Detention is considered to occur when one’s “liberty interests are significantly restrained by state authority.” “Psychological detention” may arise where state conduct may cause a person to believe that their liberty was compromised such that they “were under the control and direction of the police and unable to come and go as they wish.”
As discussed by the Supreme Court of Canada in R. v. Grant, there are three categories of factual consideration to determine psychological detention, namely:
- The nature of the police conduct;
- How the individual would reasonably perceive the circumstances leading up to the encounter; and
- Circumstances or characteristics of the individual in question, including minority status and age.
Court of Appeal finds applicant was unlawfully detained
In this case, the appellant was brought into the interview room at 5:00 p.m. and up to 7:40 p.m., the police officers took full control over the appellant. Police seized his wallet and cell phone, he was isolated from the public while in the interview room, and he was required to obtain permission to use the washroom. The police officers also decided to test the appellant’s hands for gunshot residue during this time.
Although questioning by the police ceased at 7:40 p.m., the detective failed to tell the appellant that he was free to leave and instead left the appellant in the interview room while he spoke with colleagues. Further, by this time, the appellant had still not been advised of his section 10 Charter rights to remain silent, speak with a lawyer, or end the interview. The detective then confronted the appellant regarding the inconsistencies in the robbery story, which were revealed through conversations with other witnesses. The officer told the appellant he did not believe his version of events, and the tone of the interview changed.
Although the trial judge concluded that the appellant had been detained after 7:40 p.m., the Court of Appeal determined that the appellant was generally not free to come and go as he pleased. Further, the Court found the decision to test the appellant’s hands constituted detention. As a result, the Court held the appellant had been unlawfully detained contrary to his section 9 and 10 Charter rights.
Should statements obtained during appellant’s police interview be excluded from evidence?
Section 24(2) of the Charter states evidence obtained in a manner that infringes or denies an accused of their Charter rights shall be excluded if it would bring the administration of justice into disrepute.
The Court concluded that the appellant’s Charter rights under sections 9 and 10 had been infringed. As a result, the Court turned to section 24(2) to determine whether the evidence obtained through the Charter-violating conduct should be excluded. The Court again referred to R. v. Grant, which set out a three-factor analysis for determining admissibility, which requires consideration of:
- The seriousness of the charter-infringing conduct;
- The impact of the infringement on Charter-protected interests; and
- Society’s interest in adjudication of the case based on its merits.
Court of Appeal orders exclusion of evidence and new trial
Evidence acquired by police before a Charter breach may be tainted by the subsequent Charter breach. The Court determined that the Charter breaches occurred when the police interview with the appellant began, and the seriousness of the Charter breaches that occurred after 7:40 p.m. were exacerbated. Therefore, this constituted an error of law as the trial judge failed to exclude such statements from evidence.
The Court of Appeal determined that “significant evidence” remained for the Crown’s case despite excluding “some additional reliable evidence.” The Court of Appeal ultimately allowed the appellant’s appeal and ordered the matter to proceed to a new trial.
Contact Hicks Adams in Toronto for Comprehensive Advice on Charter and Constitutional Rights
The trusted criminal defence lawyers at Hicks Adams in Toronto are prepared to defend your rights at trial and help you appeal a wrongful judgment. Whether you have been charged with an offence relating to weapons, assault, drugs, fraud or murder, our lawyers will help you understand and protect your rights. We work to ensure that our clients are protected against unlawful convictions and are positioned for the best possible outcome. Our office is conveniently located in downtown Toronto, and we represent clients throughout Ontario in bail hearings, trials, and appeals. To schedule a confidential consultation, contact us online or at 975-1700 (toll-free at 1-877-975-1700).
