New law for self-defence and defence of property

New Citizen’s Arrest and Self-defence Act is in effect as of Monday, March 11, 2013.  It introduces a new concept to the law in Canada:  arrest within a reasonable time.  It also aims to simplify the self-defence sections, which have given rise to some of the most mind-bending legal reasoning in Canadian law.

Prior to these amendments, the law of self-defence was a tangled bramble bush of special considerations, such as whether the accused provoked the attack, or reasonably believed his or her life was in danger, and whether the use of force was no more than necessary.  This language has been greatly simplified to consider whether the accused’s actions were “reasonable in the circumstances.”

The words defining self-defence might be simpler, but the interpretation and application of those words might prove to be just as difficult as the previous bramble bush.  Time will tell.

Until now, any private citizen had the power to arrest someone caught in the act of committing a crime in relation to the private citizen’s property, but there was no power to do so after the fact. 

In recent years some cases attracted a lot of attention because of this law.  In 2009, a Toronto storeowner pursued a shoplifter, chasing him down the street to arrest him, and was himself charged with assault and forcible confinement.  Although we have yet to see how the courts will interpret “arrest within a reasonable time,” likely that storeowner would not have been charged under the new law.

We could expect that a “reasonable time” will be longer in more remote locations, where the police response time might be expected to be longer.

Which law applies to cases that are already before the courts is a matter for the lawyers to work out.

Ann Pollak is a criminal defence lawyer in Burnaby who represents clients in Peace Country and Yukon.  www.northerndefencelaw.com

© Ann Pollak 2013

R. v. Tse, 2012 SCC 16 - strikes down emergency wiretap provision

The Supreme Court of Canada today, in the case of R. v. Tse, 2012 SCC 16, struck down section 184.4 of the Criminal Code, which permits police use of wiretap in exigent circumstances without prior judicial authorisation.

The court concluded that the section strikes an appropriate balance between privacy interests and public safety (para.94), but does not pass the second stage of the Oakes test. It serves a pressing and substantial objective, but the means used are not proportional to the limit on privacy. There is no use of a notice provision, such as that found in section 196(1), which gives notice after the fact to parties whose communications have been intercepted.

The provision of notice after the fact of the wiretap is an important measure for accountability for the police use of this exceptional power to invade privacy. Without that accountability the section is unconstitutional (para.98).

The declaration of invalidity is suspended for 12 months to give Parliament an opportunity to redraft the legislation. The matter of including section 184.4 in the notice provision already in force at section 196(1) might be a simple matter, but the court also raised issues, without deciding them, about the power of others who are not police officers to make use of the provision: a power that should raise the collective hackles of the citizenry.

Here is the decision:

http://scc.lexum.org/en/2012/2012scc16/2012scc16.html

R. v. Côté, 2011 SCC 46 -- SCC Bright Lines Charter remedy

The Supreme Court of Canada on Friday released its latest statement on the exclusion of evidence in cases in which the Charter rights of the accused have been breached.

Since the Court's decision in R. v. Grant, 2009 SCC 32, courts' application of the test for excluding evidence from a trial following a finding of Charter breach seems to have resulted in fewer cases in which evidence has been excluded, in particular where the charges are seen to be less serious.

The balancing operation in Grant, however, had suggested that in more serious cases, courts might exclude evidence more often than in the pre-Grant universe. Although the Côté decision is couched in terms of standard of review, it is clear in a reading of the whole case that that Court gave more weight to the impact of a Charter breach where the charge was serious, in this case, second degree murder.

The Court concluded:

[89] To sum up, the trial judge’s decision to exclude the observations made by police at the appellant’s home and the physical evidence collected pursuant to the warrants was owed deference. With respect, the Court of Appeal misconceived of its appellate role when it substituted its view of the police conduct for the trial judge’s and when it placed undue emphasis on the seriousness of the offence. The Court of Appeal’s holding that the police had not deliberately acted in an abusive manner was contrary to the trial judge’s numerous findings of deliberate and systematic police misconduct. Its emphasis on the seriousness of the offence was also misplaced given that the trial judge had acknowledged that the offence was serious and that the seriousness of the offence had been held not to be a determinative factor. The Court of Appeal also erred in placing undue weight on the “discoverability” of the evidence in its s. 24(2) analysis. While I agree with the Court of Appeal that the police could have demonstrated to a judicial officer that they had reasonable and probable grounds to believe that an offence had been committed and that there was evidence to be found at the place of the search, this fact would not have affected the s.24(2) analysis in all of the circumstances of this case. Both the police misconduct and its impact on the accused’s Charter-protected interests were very serious, even taking discoverability into account. The trial judge was obviously and justly concerned about the continuous, deliberate and flagrant breaches of the appellant’s Charter rights and this consideration played an important role in his balancing of the factors under s. 24(2). He also properly took into account the strong societal interest in having a serious criminal charge determined on its merits. His conclusion was not tainted by any error of law relevant to the ultimate conclusion and, accordingly, it should not have been set aside on appeal.

The Court in Ottawa restored the acquittal, which had been the original trial outcome.

Image of Supreme Court of Canada (c) Tim Lash 2003

I just got arrested -- there's an app

You knew this day was coming. There's a new app for Android: "I'm Getting Arrested”. It’s free on the Android Market.

Of course you would have to pull up the app, open it, and touch the panic button for two seconds all before the police relieve you of your mobile phone, but there are some situations in which you might just have that opportunity. And, hey, did I say it’s free?

You enter the mobile numbers for your crucial contacts, and most importantly your lawyer, and the app sends all of them the same text message, letting them know of your plight, all at the push of one button.

Question: does it also geo-tag your location?

Now we just need an app that also advises you of your rights upon arrest and how to exercise them effectively.

-- Ann Pollak