CHAPTER 10 REVIEW:

Hold corporate criminally liable → corporation isnt a “person” = no mens rea

- Identify or attribute to real person, often a director
- 3 APPROACHES
- The identity approach is difficult bc u need to prove board of directors knew
- Current Canadian approach → senior officer test USED IN FEDERAL OFFENSE
- PROVINCIAL OR MUNICIPAL = IDENTITY APPROACH
- ZANZIBAR CASE

LAW 534 Chapter 24: (About Evidence)

Introduction:
This chapter we review the legal principles that relate to investigations and searches → these events can be expected in the regulatory field
- If necessary, review and recall basic concepts about the charter
- Limitations placed upon government enactment of law and government actions
- Charter rights are not absolute → Section 1 states that they are subject to reasonable limitations
- A key concept here is whether evidence obtained in an investigation can be excluded by the defendant at trial
- Evidence obtained in violation of section 2 may be excluded at the discretion of the court under section 24 (2). The
evidence is NOT automatically excluded → the court has to decide whether admission of evidence would bring the administration of
justice to disrepute

Rights in Administrative Proceedings:

- Meaning of administrative proceedings
- Side discussion: Goodwin case (s.8 Charter violation → including reliability of the particular breath device)
- Notes the Coluson predicts that administrative searches will be subject to some minimal level of judicial oversight (charter
applies but not as harsh & to a level)
- NOTE: POTENTIALLY COMPLEX LEGAL ANALYSIS in textbook at time: Students are only expected to know the
material at the same level discussed

Securities Act (Ontario) - NOTE power for investigator to compel testimony or production of documents
- Sharpe (Re): public disclosure of compelled testimony; court finding on reasonable expectation of privacy? → if u dont speak u
could be charged with contempt, court said privacy is important but a greater public good by publicly disclosing it
- Any variation of the original order?

Right to counsel & the Duty to Hold Off: → KEY CASE: R. v. G.T.D → SCC rules there was a Charter violation and also decides
to exclude evidence under s.24(2)

Arbitrary Detention/Exclusion of Evidence:

Re. v. le: Case about 5 racialized men → appear to be doing nothing wrong; police entrance (no warrant or consent) - questions and request ID
- Needed a warrant or reasonable grounds (was neither)
- Accused fled, arrested → possession of firearm, drugs and cash
- Evidence excluded – violation of s.9: was there a reasonable suspicion?
- The legitimacy of any investigation in the context of s.9 is measured against whether the circumstances give rise to
reasonable suspicion or not
- The majority opinion concluded that they did not rise to this level and that the detention was therefore arbitrary
Rely on Grant case for exclusionary principles (page 716~717)
1) Overall view of justice system in the long term
2) Would admission bring administration of justice into disrepute
3) Society’s interest (example: seriousness of the charge)

R. v. Stairs: case about search incidental to arrest

- Note facts of case – including purpose of search (and context in which it occurred) – police spot plastic bag of
methamphetamine in plain view
Facts: the police responded to a 9-1-1 caller who reported seeing a man repeatedly hitting a woman in a car, so the police promptly
located the suspect car parked in the driveway of the unknown house. They knocked on the front door but no one answered so the
police entered the house
- Mr. Stairs appealed his conviction for the drug offence on the basis that the drug evidence was improperly admitted
Result: Mr. Stairs’ s.8 Charter rights were not breached, and the drug evidence was properly admitted
- Evidence not excluded
- Within the arrested person’s physical control or outside their physical control
- Majority decision states the rule (if it is outside their physical control):
1) Police need reason to suspect that there is safety risk to police or public that can be addressed by search
2) The search is done in a reasonable manner (especially considering it is a private home)

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 ▪ While privacy interests in the home are important, s.8 of the Charter “Was not intended to protect
blindly privacy interests claimed in the context of criminal activities which are played out within one’s
home”
o NOTE!: R. v. Le and R. v. Stairs are criminal cases – not necessarily applicable to an administrative
proceeding

THE OFFICER DOESN’T NEED A WARRANT IF:

1. Plain view doctrine → Example: gets pulled over for speeding and the officer sees drugs on ur dash ‘in plain view’
2. Hot pursuit → Doesn't need a warrant to enter someone's home if they are in hot pursuit of the criminal; EXAMPLE: criminal runs
into a house with guns, doesn't need a warrant

Note about Procedure:

If accused challenges under the Charter
- S.109 of the Ontario Courts of Justice Act requires that the accused serves the prosection w/ notice
- Failure to provide notice → remedy denied (court discretion?)
- Notice period as soon as circumstances discovered (at bare minimum 15 days before to be argued)
What is a “motion”?: This is like a trial within a trial; argument about a sub-issue in the trial (Example: whether a certain piece of
evidence should be excluded)
- What about whether a proceeding is stayed due to unreasonable delay? (Accused has right to trial within a reasonable
time)
- Applies to corporate defendants too (R. v. CIP): Factors to consider
- Length of delay
- Any waivers of time period?
- Explanation for the delay
- Prejudice to the excused
YET 1 Important difference between corporations & individual w/ respect to argument about unreasonable delay
- W/ individuals, there is a presumption that the delay is prejudicial
- W/ corporations, a corporation is required to establish that its opportunity for a fair trial has been irreparably prejudiced (R.
v. CIP)
What is there is no lost evidence? → See R. v. Norwall Group:
- Interesting set of facts relating to witnesses who have left employment of corporation → interference of prejudice upheld at trial
- Court of appeal reverses ruling → court principle from this ruling
- Similar principle in R. v. Johnson
- Pg. 725-729: can be complex → for the purposes of our course → skim this section but be aware of the general principle that “the
judge is balancing the societal interest in seeing that persons charged with an offence are brought to trial against the accused interest in
prompt adjudication”

Legal compartments: Individual v. Corporate Rights

R. v. Fitzpatrick
- This is a key case regarding Charter & Regulatory Law
Facts: Fisheries Case - all fishers are required to provide both a hail report & a daily fishing log
Issue: Can the government use the hail report & daily fishing log as evidence (since the fisher was compelled to provide them as
part of the job of being a fisher?)
- The court notes that this is not an adversarial relationship (the part where fisher is required to keep hail reports and logs)
- Voluntary free will: Essentially one enters into a regulated industry voluntarily and is required to meet legal requirements
imposed on that industry
- Potential abuse by State?: Justice La Forest notes that there is a lower level of expectation of privacy for business, no
emotional element or psychological invasion of individual dignity
R. v. Kooktook: This case was considered to be different by the court
- Crown tried to characterize tags as being similar to hail reports
- Court stated this hunt was not for commercial purposes and rejected the analogy between the tags and hail reports
R. v. Synchrude:
- Note: typically there is a common law test regarding confessions - if an individual confesses, the courts apply the test to
see if its is a valid confession
- However, in this court case the admission of a senior officer can bind the corporation (but does not have to pass the
confessions rules test to be valid_ - therefore, making it easier to obtain a confession in a corporate context
- Textbook authors have concern about this: it gets complex in the textbook so here are the main points:
- Potentially unfair - no opportunity to cross-examine by corporation
- Argue that this might be hearsay (and no exception applies)

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The Broad Ambit of Inspection Powers Under Regulatory Statutes:
- Regulatory statutes may provide specific powers for government to conduct inspections without the need for a warrant
Key Points to Understand:
- Courts respect that inspections are necessary to administer a regulatory statute but are concerned that this may open the
door to widely - therefore courts developed a legal test
- Compliance audits do not require warrants. In circumstances where the officer has reasonable grounds to believe that an
offence has been committed, a warrant must be obtained
Review Inco Case:
- Particularly with respect to the IEB officer actions and testimony
- Although court discussed difference between compliance and criminal law searches - not much guidance (more guidance
in R. v. Jarvis later)
- If the government sends an “undercover” agent (e.g. a person who looks like a minor and does not present identification)
to attempt to buy cigarettes or alcohol, is the “entrapment” and unconstitutional in the context of this strict liability offence?
(R. v. Clothier)

Crossing The Rubicon to Adversarial Territory:

The relevant question is when does a compliance audit cross the line?
Answer: Officer has reasonable and probable grounds to suspect an offence has been committed (this crosses the line into
adversarial territory and triggers Charter protections like section 8)
Consequence: Needs warrant to proceed further or any evidence after this point may be inadmissible
- R. v. Jarvis: Provides more detail on the above principle touched upon in the Inco case

POST-JARVIS WORLD:
- Article by Chris Sprysak - what is the proper balance between privacy and State need for disclosure for taxes
- Ellingson Case: Request for unfiled returns doesn't necessarily create an adversarial relationship
- Authors note that slow pace is more likely to be information gathering compared to rapid pace (more like to be
adversarial)
- R. v. Tiffin: Case with strong dissent - shows disagreement about where the Rubicon might actually be
- R. v. Pomerory: Case about detention - but be careful about applying it because it is a criminal law case
NOTE FACTORS CONSIDERED BY THE COURT (Pgs. 703-704)
- Note the discussion of R. v. White case in contrast: different from Fitzpatrick case
- NOTE section “Crossing the Rubicon in Strict Liability Offences”
- Authors believe that principles in Jarvis case will likely apply for regulatory statutes
- Review the Fisheries Act example