Charter s.8

Unreasonable Search and Seizure

Overview

This page contains information about use of the "Unreasonable Search and Seizure" defence for various criminal charges in Canada. It was written and prepared by experienced criminal defence lawyers in Toronto but does not consist of legal advice.

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Unreasonable Search and Seizure as Legal Defence

Breach of the right to be free from unreasonable search and seizure (Section 8 of the Charter of Rights and Freedoms).

What this Means

The Canadian Charter of Rights and Freedoms sets out the rights that a person has when interacting with the police and the justice system. Section 8 of The Charter protects every person’s reasonable expectation of privacy.

In Canada, every person is entitled to a reasonable expectation of privacy. This means that any authority acting on behalf of the government (including the
police and the Crown Attorney) must carry out their duties in such a way that your reasonable expectation of privacy is upheld.

The police cannot search you, take anything that belongs to you, enter any place for which you have a reasonable expectation of privacy (for example: your home or your car) or access your personal information, unless done pursuant to a valid law that is reasonable and unless the search is done in a reasonable manner.

In many cases the police will have to obtain judicial authorization in the form of a search warrant or a production order before conducting a search or seizure. Even in cases where the police did obtain a search warrant, we can challenge the validity of the warrant to get any evidence that was seized excluded from consideration at your trial.

In some circumstances, the police will conduct a search or seizure without a search warrant. This is presumptively unreasonable and the Crown Attorney will have the onus or burden of establishing at your trial that in the given circumstances, the search was still reasonable.

If we are successful at establishing that one or more of your rights under the Charter were violated, we may be able to get evidence critical to the case against you thrown out (for example; drugs, guns, breath samples, financial records) or we may even be able to get the entire case against you thrown out.

At Every Defence, we have successfully defended hundreds of cases by showing that our clients’ rights under the Charter were breached.

Charged with a Criminal Offence? Get Every Defence.

Do not plead guilty without discussing your case with a lawyer. Many criminal offences have mandatory minimum sentences and a conviction will often result in a lengthy jail sentence. Being found guilty may result in negative employment, immigration and personal consequences to you and your family for years to come.

You are presumed innocent. With over 25 years of successful trial experience, Norm and Marcus will argue for every defence available to you and ensure that all of your rights are protected. We will fight for the positive result you need to move on with your life.

Speak with Norm and Marcus. Call (416) 855-7799 or email us at [email protected]. We accept calls 24 hours a day, 7 days a week. Confidentiality guaranteed. Free consultations. Meeting by appointment only.

Recent Successes

Case Review Proportionality Provocation Reasonableness SECOND DEGREE MURDER

Provocation and Proportionality used as defences against Second Degree Murder Charges

Anyone charged with a criminal offence has the right to argue Every Defence including the defence of Provocation. Provocation is a partial defence under s. 232(1) of the Criminal Code reducing murder to manslaughter by negating the intent in causing the death. In this case, the Accused was charged with Second-Degree Murder. The deceased was pregnant with the Accused’s child. The Accused and deceased engaged in casual sex and were in relationships with other partners at the time. The Accused had plans to attend university. He did not want the deceased to continue the pregnancy. The Accused admitted that he strangled the deceased causing her death in response to her threat to falsely implicate him for harming their prenatal child after she tripped and fell while in his company. The Accused buried the deceased in a shallow grave the next day. He subsequently created a false narrative including forging a letter from the deceased to her mother writing that she would be away from home a while longer but was in good health. When the deceased’s body was found, the Accused fled the jurisdiction. The trial judge’s instruction to the jury on the defence of Provocation referenced the differences in the Accused and deceased’s size and athletic ability, emphasizing the Accused being significantly larger and stronger. This was an error. The jury should have not been instructed to consider the Accused’s personal characteristics in considering the reasonableness of his response to the provocation. “The [Accused’s] size and athletic ability are not characteristics that have any inherent relevance to the degree of self-control expected of an ordinary person. Large people or good athletes are not expected to have more or less self-control than small people who are not athletic.” The Accused’s Provocation defence was based on uncontrollable anger not fear. Any difference in size and strength was immaterial to the consideration of whether the act of provocation would cause an ordinary person to lose the power of self-control. Likewise, the reasonableness or proportionality of the response is inherently irrelevant. The Court of Appeal found that “unlike some defences, e.g. self-defence and duress, provocation does not measure the conduct of the Accused against standards of reasonableness or proportionality”. The Court of Appeal for Ontario ordered a new trial.

Air of Reality Case Review Provocation SECOND DEGREE MURDER

R v BARRETT 2022

Anyone charged with a criminal offence has the right to pursue Every Defence including the defence of Provocation. An Accused may advance the defence that they committed the offence alleged as the result of an act so provocative that it had the effect of depriving the Accused of the ability to control their behaviour. This means that the offence was committed involuntarily rather than intentionally. In this case, the Accused was charged with Second-Degree Murder. The Accused and the deceased had a history of physical fights. At trial, the Accused argued that the jury should be instructed to consider the defence of Provocation. This would require the jury to take into account the Accused’s “state of mind, including alcohol consumption, mental disorder, rage, fear, and [the deceased’s] provoking or threatening words or conduct.” The trial judge found that there was no air of reality to the defence and refused to instruct the jury on Provocation which if accepted, could have resulted in an acquittal or conviction of a lesser charge such as Manslaughter. The Accused testified he observed the deceased threatening and/or stabbing the deceased’s domestic partner. The deceased was armed with two kitchen knives. The Accused confronted the deceased, took control of one of the knives and stabbed the deceased 22 times. The Accused further testified that during the course of the struggle over the knives, the deceased stated he “was going to fucking kill me”. The Court of Appeal for Ontario ordered a new trial.

Air of Reality Air of Reality Case Review Duress Trafficking Drugs Trafficking Drugs

R v NORMAN, 2021 ONCA 321 – Duress defence against drug trafficking charges

Every Accused may advance the defence that they committed the offence alleged under Duress. This means that the offence was committed involuntarily rather than intentionally. In this case, the Accused was charged with Trafficking and Breach of Probation for smuggling drugs into the Central East Correctional Centre in Lindsay, Ontario. At trial, the Accused argued that he was forced into committing the offence because of threats made against him and his brother by “Big Newf”. The Accused was a seasoned inmate while it was his brother’s first time in custody. The trial judge found that there was an “air of reality to the defence of duress and that the Crown had failed to prove beyond a reasonable doubt that the defence did not apply”. The Accused was acquitted of all charges.

Alibi Case Review

R v BUSHIRI

Every Accused charged with an offence may put forward the defence that they were not present at the time and place the crime is alleged to have occurred. Alibi is Latin for elsewhere. The alibi defence does not need to be disclosed at the time of arrest but the details of the alibi must be provided to the prosecution with enough time for them to investigate prior to trial. If an Accused fails to give sufficient notice of their alibi, the judge or jury “may draw an adverse inference when weighing the alibi evidence”. In this case, the Accused mentioned a possible alibi defence on the first day of trial and provided details of the alibi to the Crown Attorney on the following day. The Accused’s brother testified that the Accused was with him at the time of the offence. The judge gave the alibi evidence no weight because of the late notice and for being incredulous.

Aggravated Assault Air of Reality Case Review Defence of Others Possession of Weapon for Dangerous Purpose Self Defence

R v PAUL

Every Accused charged with an offence may present evidence that the offence was committed in self-defence and/or the defence of others. Persons who themselves are the target of violence or the threat of violence may use reasonable force to defend themselves. Likewise, a person may use reasonable force in the defence of another party. In this case, a fight ensued wherein the complainant was armed with a machete and a knife while the Accused wielded a hammer. At some point the Accused struck the complainant’s hand with the machete. A new trial was ordered on appeal after the trial judge failed to instruct the jury to consider self-defence and/or in the defence of a third-party. The test for if a defence should be left with the jury, ie. whether there is an “air of reality” to the proposed defence, is three-fold. Is there evidence on which a jury could reasonably find that each of the three criteria of self-defence and/or defence of others were not disproven beyond a reasonable doubt: (a) could a jury reasonably conclude that the Accused believed on reasonable grounds that force or threat of force was being used against them or someone else; (b) could a jury reasonably conclude that the subjective purpose of the defensive act was for the Accused to protect themselves or others; and (c) the reasonableness of the force used. https://www.canlii.org/en/on/onca/doc/2020/2020onca259/2020onca259.html

Air of Reality Alternate Suspect - Third Party Suspect Case Review Circumstantial Evidence Direct Evidence Disposition or Propensity to Commit Offence

R v HUDSON – Alternate Suspect – Third Party Suspect

Every Accused charged with an offence may present evidence in their defence that another person committed that offence instead of them. An alternative suspect would be a co-accused or someone who is already involved in the case. Third-party suspects are people who have not come to the attention of the police, Crown Attorney or court. The evidence offered may be direct, circumstantial or a combination of both. Direct evidence might be that the Accused observed the alternate suspect or third party suspect commit the offence. An example of circumstantial evidence is that the alternate suspect or third party suspect has an extensive criminal record for committing the same kind of offence and/or had recently threaten to commit the offence. In order for the judge or jury to consider an alternative suspect or third party suspect defence the evidence must have an “air of reality” – this means it must be possible that the evidence is true. CanLII Link Defence – Alternate Suspect – Third Party Suspect – Disposition or Propensity to Commit Offence