Stuart O'Connell Criminal Law Blog

The principal purpose of section 8 of the Charter is to protect an accused’s privacy interests against unreasonable intrusion by the State.  Accordingly, police conduct interfering with a reasonable expectation of privacy is said to constitute a “search” within the meaning of the provision. R. v. Law , 2002 SCC 10 (CanLII) , at para. 15. A section 8 analysis consists of two steps:   (1) whether the state action constitutes a search; and if so, (2) whether the search was reasonable. R. v. Law , 2002 SCC 10 (CanLII). A search occurs when state conduct interferes with an individual’s reasonable expectation of privacy. Hunter v. Southam Inc. , 1984 CanLII 33 (SCC);   R. v. Edwards , 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 12; R. v. Law , 2002 SCC 10 (CanLII) , at para. 15. The Doctrinal Framework for Determining a Reasonable Expectation of Privacy Section 8 applies “where a person has a reasonable privacy interest in the object or subject matt...

In many criminal cases, particularly the more serious cases, sentencing will, of necessity, take time, sometimes a matter of months. D angerous offender applications, situations in which expert reports are required or extensive evidence is tendered, for instance,  significantly lengthen the sentencing process.   While the Jordan analysis does apply to post-verdict delay, the presumptive ceilings established in Jordan do not include post-verdict delay. Post-verdict delay, for the purposes of applying a presumptive ceiling, is to be assessed separately from pre-verdict delay and is subject to its own presumptive ceiling.                 R. v. Charley , 2019 ONCA 726. The Court of Appeal for Ontario in R. v. Charley  fixed that ceiling at five months. Five months is the point at which the delay is sufficiently long that it is regarded as presumptively unreasonable for the purposes of s. 11(b). The onus falls to...

The police, in carrying out their general duties as law enforcement officers of the state, have limited powers and are only entitled to interfere with the liberty or property of the citizen to the extent authorized by law. Absent explicit or implied statutory authority, the police must be able to find authority for their actions at common law. Otherwise they act unlawfully. [1] To determine whether a particular police action that interferes with individual liberty is authorized at common law, the ancillary powers doctrine must be applied. Fundamental to this doctrine is whether the police action is reasonably necessary in order to fulfil a statutory or common law duty of police (for instance, preserving the peace, preventing crime and protecting life and property). In Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223, the Court of Appeal for Ontario accepted (in obiter ) that the police have a common law power of arrest to prevent an apprehended breach of the...