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| Patrick J Ducharme |
In July, 2009 the Supreme Court of Canada rendered its decisions in R. v. Harrison1 and R. v. Grant.2 These cases are fundamentally important to understanding how our courts will now interpret applications to remedy Charter infringements of one’s right to be secure against unreasonable search or seizure and arbitrary detentions and arrests by the police.
Continue reading “The Cases of Grant and Harrison”
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| Patrick Ducharme |
Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. This provision has been interpreted, however, as permitting the random stopping of a motorist for the purpose of spot check procedures and the enforcement of highway traffic legislation. Our courts have found that random stops of motorists amount to technical breaches of section 9, however, these infringements of section 8 by the police are saved by section 1 of the Charter as reasonable limits, demonstrably justified in a free and democratic society, as reasonable protections from the ravages of drunk or otherwise impaired drivers.
Continue reading “Section 9 of the Charter”
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| Patrick Ducharme |
Continued from Part 1: Search and Seizure.
Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. A search is “reasonable” if it is authorized by law, if the law authorizing is itself reasonable, and if the search is conducted in a reasonable manner. In other words, a search or seizure must be authorized by a specific statutory or common-law rule, and then, be carried out within the requirements that the law provides. The investigating officers are required to operate on reasonable grounds that import the concept of a credibly based probability. Continue reading “Constitutionality of Search and Seizure”
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| Patrick J Ducharme |
Section 8 of the Charter
Section 8 of the Charter provides everyone has the right to be secure against unreasonable search or seizure. The section serves as a limitation on the powers of search and seizure held by the federal or provincial governments. It does not itself confer any powers of search and seizure on these governments. Section 8 provides a broad and general protection against unreasonable search and seizure. Any discussion concerning search and seizure must begin with a thorough consideration of section 8.
Continue reading “Search and Seizure”
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| Patrick Ducharme |
In R v. H. (L.T.)1 the Supreme Court of Canada held that “young persons, even more than adults, are inclined to feel vulnerable when questioned by police officers who suspect them of crime and can influence their fate.” Parliament has provided young persons with enhanced procedural safeguards contained in section 146 of the YCJA. The pertinent provisions of the Act provided as follows:
Continue reading “Evidence: Admissibility of a Statement Made by a Youth”
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| Patrick Ducharme |
Where the young person is subject to a youth sentence, the young person is subject only to the sanctions prescribed by section 42 of the YCJA. Those possibilities are as follows:
Continue reading “Imposition of a Youth Sentence for a Young Person”
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| Patrick J Ducharme |
Section 71 and 72 of the YCJA
The court is required at the commencement of the sentencing hearing to hold a hearing in respect of an application under subsection 64(1) (application for an adult to sentence) unless the court has received notice that the application is not opposed. Both parties and the parents of the young person are given an opportunity to be heard at the hearing.
Continue reading “Hearing as to Whether a Youth or Adult Sentence is to be Imposed after a Finding of Guilt”
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| Patrick Ducharme |
Notice Requirements: s. 64 of the YCJA
Section 64 of the Act provides the notice requirements. They are:
64(1) The Attorney General may, before evidence is called as to sentence or, if no evidence is called, before submissions are made as to sentence, make an application to the youth Justice court for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence for which an adult is liable to imprisonment for a term of more than two years and that was committed after the young person attained the age of fourteen years.
The trial procedure in respect of federal offences allegedly committed by a young person is determined by the sentence that may be imposed: whether a youth sentence may be imposed or whether an adult sentence may be imposed.
Continue reading “Election of Mode of Trial When Facing an Adult Sentence”
The provisions allowing for the imposition of an adult sentence are found within subsections 64(1)(2) and (3); 67; 69(2); 71, and 72, to 81 of the YCJA. Many sections and subsections have been repealed since the Supreme Court of Canada’s decision in R. v. B. (D).1 This case decided that the presumption of adult sentences and previous reverse onus provisions violated section 7 of the Charter and could not be justified under the Charter. This required that the federal government repeal all of the offending provisions.
