Patrick J Ducharme

Patrick Ducharme

Most search warrants are now issued pursuant to section 487 of the Code. The provisions of section 487 of the Code have been found to conform to the general requirements for a constitutional search and seizure under the authority of a search warrant.1 The informant police officer must disclose facts upon which the Justice of the peace or Judge may determine the warrant should issue. The Criminal Code contains several provisions that permit the police to search for and seize evidence.2 But section 487 is by far the most important and applies to all federal statutes. Even though other federal and provincial statutes may contain search provisions, the police often rely upon the provisions of section 487 to obtain a search warrant. All searches, even those using a search warrant, are governed by section 8 of the Charter.
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Patrick Ducharme

Continued from Part 1: The Cases of Grant and Harrison

In Grant the Supreme Court of Canada dealt with a different type of infringement of the right to be free from unreasonable search or seizure. This case involved an appeal by Grant from his convictions on a series of firearms offences, relating to a gun seized by police during an encounter on a Toronto sidewalk. After noting that Grant, who was walking down the street, was fidgeting with his pants, a police officer initiated an exchange with him, while standing on the sidewalk directly in his intended path. At one point, Grant adjusted his jacket, which prompted the officer to ask him to keep his hands in front of him.

Continue reading “The Cases of Grant and Harrison (Part 2)”

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”

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”

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”

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.
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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”

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”

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”

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.

Continue reading “Application by Attorney General”