Section (8-11)

Auswah Imaan
Jan 27, 2021
7 min read

Updated: Jan 29, 2021

Section 8 - Search and seizure

Section 8 of the Canadian Charter of Rights and Freedoms provides everyone in Canada with protection against unreasonable search and seizure. This right provides Canadians with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state. Typically, this protects personal information that can be obtained through searching someone in pat-down, entering someone's property or surveillance.

Section 9 - Arbitrary detention

Section 9 of the Canadian Charter of Rights and Freedoms, found under the "Legal rights" heading in the Charter, guarantees the right against arbitrary detainment and imprisonment.

Detainment within the meaning of both section nine and section ten is not invoked unless there is significant physical or psychological restraint. Detainment can be found to be arbitrary where there is "no express or implied criteria which govern its exercise."

The Supreme Court of Canada has stated that "detention" refers to a suspension of an individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

Section 10 - Habeas Corpus

Section 10 of the Canadian Charter of Rights and Freedoms specifies rights upon arrest or detention, including the rights to consult a lawyer and the right to habeas corpus. As a part of a broader range of legal rights guaranteed by the Charter, section 10 rights may be limited by the Oakes test and/or the notwithstanding clause. However, section 10 has also spawned considerable litigation, and has made an impact in numerous cases.

Explanation of arrest or detention

Section 10 requires that a person who is arrested or detained must be told why. In R. v. Latimer (1997), the Supreme Court of Canada considered an argument in which a person, Robert Latimer, was told he was being "detained", but was not told why he was being "arrested" and could be charged with the murder of his daughter. The Court found section 10 was not infringed. Section 10 is meant to ensure those arrested or detained are aware of the gravity of the situation. Latimer argued that since the police did not call the detention an arrest, he was not fully aware of the severity of the trouble he was in. He also claimed this was the reason why he had declined to talk to a lawyer. The Court argued the words used did not matter, but rather how the suspect can interpret the situation. Latimer could be expected to understand the seriousness of the situation since he was told he was being detained in connection with his daughter's death. The police had explicitly said the situation was serious, and had told him of rights one has when being arrested.

Section 11 - legal rights apply to those "charged with an offence"

Section 11 of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution that protects a person's legal rights in criminal and penal matters.

https://www.youtube.com/watch?v=6OIS1CCkZak

There are nine enumerated rights protected in section 11.

Right to be informed of the offence

The right of a person charged with an offence to be informed of the offence originated in

section 510 of the Criminal Code as well as legal tradition. Some courts have used section

510 to help read section 11(a), concluding that the right allows for a person to be "reasonable informed" of the charge; thus it does not matter if a summons simply summarizes a charge.

Right to be tried within a reasonable time

Section 11(b) can be taken to provide a right to a speedy trial. The criteria by which the court will consider whether the rights of an accused under this provision have been infringed were set out. The Supreme Court of Canada clarified the test set out in Askov, noting that the accused bears a certain onus to demonstrate actual prejudice as a result of delay. In cases of very extensive delay, however, the court found that prejudice could be inferred.

Later,(1994), the Supreme Court clarified that the period of "unreasonable delay" begins at the time the charge is laid. This was in response to a case in which charges were laid 45 years after the alleged offences occurred; and that this was suggested to be an

unreasonable delay. Reasonableness depends, in part, on the amount of investigative work that is involved, the number of interested parties and their locations, and/or the complexity of the case. Reasonableness also relates to local court resources and/or how they compare to other jurisdictions. Other elements in determining reasonableness of delay could include delays by either the Crown attorney or defense counsel, or even the Court itself.

In (2016), the Supreme Court established that a delay longer than 18 months from when a charge is laid to the trial's completion is "presumptively unreasonable" and any delay by the Crown beyond that time that is not justified by exceptional circumstances that are either unforeseeable or beyond the Crown's control must result in a stay of proceedings. When a preliminary inquiry is held or the accused is tried in superior court, the presumptive ceiling is extended to 30 months.

Right to not be compelled to be a witness

This provides a right against self-incrimination. R. v. Hebert, [1990] 2 SCR 151 confirms that this right extends to situations where the police employ "unfair tricks" such as sending an undercover police officer to pose as a sympathetic cellmate.

Right to be presumed innocent

This right has generated some case law, as courts have struck down reverse onus clauses as violating the presumption of innocence. This first occurred in R. v. Oakes (1986) in respect to the Narcotics Control Act. This was also the case in which the Court developed the primary

test for measure

ring rights limitations under section 1 of the Charter. The Court found having a reverse onus clause was not rational in fighting narcotics traffic since one could not assume a person found with narcotics means to traffic it. In the question of automatism was considered, with the Court deciding that while shifting the burden of proof to the defendant was a violation of section 11, it could be justified under section 1 because criminal law presumes willing actions.

Right not to be denied reasonable bail

The right to reasonable bail was examined when a person was denied bail under section 515 of the Criminal Code, which allowed detention where it "is necessary in the public interest or for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will … commit a criminal

offence or interfere with the administration of justice". Chief Justice Lamer, for the majority of the Supreme Court, found that the "public interest" component violated the accused right not to be denied reasonable bail under section 11(e) of the Charter and could not be saved under section 1. He ordered the words "in the public interest" be declared of no force or effect. Lamer examined the phrase "in the public interest" and found that it was vague and imprecise, and so could not be used to frame a legal debate that could produce a structured rule.

Right to trial by jury

The right to a jury is protected by section 11(f). The Supreme Court considered this right in R. v. Pan; R. v. Sawyer (2001), which saw a challenge to the constitutionality of section 649 of the Criminal Code, which prohibited the use of evidence regarding the deliberation of the jury.

The Supreme Court found the erosion of the secrecy of the jury would have a negative

impact on the ability of a jury to decide a case and would affect an individual's right to jury trial under section 11(f) of the Charter. It is required under the principles of fundamental justice to have an impartial jury.

Right not to be found guilty unless action constituted an offence

This right prohibits ex post facto law, meaning that it requires that in order for a person's action or lack there of to be considered a crime, the action must have already been criminalized before the person committed it. Still, in 1991 the Supreme Court ruled in R. v. Furtney that section 11(g) does not require that all people must be aware of what is criminal and what is not. International law is recognized by section 11(g), and the Court acknowledged the federal government is not obligated to make sure all Canadians are aware of what international law says.

Right not to be tried again

This provision prohibits double jeopardy, but only applies after the trial is finally concluded. The Crown has the right to appeal from acquittals. If the appellate court sets aside an acquittal and orders a new trial, that is consistent with this section because the accused has not been "finally acquitted."

Standards for section 11(h) were set in the Supreme Court case R. v. Wigglesworth (1987). The Court noted that section 11(h) only applies to criminal matters and so both charges must be criminal in nature to invoke the double jeopardy defense. The Court then proposed a two part test to determine whether the first proceeding was in relation to a criminal matters and therefore invoking section 11(h). First, it must be determined whether the matter is of a "public nature, intended to promote public order and welfare within a public sphere of activity". Second, it must be determined whether the matter involves "the imposition of true penal consequences".

Right to lesser punishment

This right states that if a person committed a crime whose punishment has become lighter or harsher by the time a judge delivers a sentence, the person should receive the lighter

punishment. In some cases, the Court of Appeal for Ontario and Alberta Court of Appeal have ruled that section 11(i) only applies to the sentencing given by a trial judge. If the case is appealed and the punishment is made less severe, a person does not have a right to be given the lesser punishment from an appellate judge.