Criminal and Cons,tu,onal Law 2016 Red Nine talk penile swabs, - - PowerPoint PPT Presentation

Criminal and Cons,tu,onal Law 2016

Red Nine talk penile swabs, mandatory minimums, and the culture of complacency

• R. v. Saeed, 2016 SCC 24
• does the common law power of search

incident to arrest authorize a penile swab of the accused?

• Issue: can the police touch your genitals

without a warrant?

Previous cases had held that:

– taking mouth swabs; – taking dental impressions; or, – seizing hairs from an accused would be a significant intrusion of bodily integrity and could be an affront to privacy and dignity

Which of these would you call your privates?

S)llman Does Not Apply

• Majority (Moldaver J.) decided that this was

unlike a seizure of a bodily sample because:

– Penile swab not designed to seize the accused’s

• wn bodily samples

– Penile swab is less invasive than a two hour long process for taking dental impressions – the complainant’s DNA degrades over ,me

“The facts of this case demonstrate the usefulness

• f a penile swab performed

incident to arrest.”

As long as (1) arrest is lawful, (2) police have reasonable grounds to believe that a penile swab will give evidence, and (ie. search is truly incident to arrest) and (3) conducted in a reasonable manner, penile swab will not offend s. 8.

Dissent 1

• Karakatsanis, J.:

– Swab of genitals is far more intrusive than a swab

• f the inside of the mouth or a pluck of hair from

the head – Cannot use the usefulness of the evidence to infringe the privacy interest BUT, trial judge admi^ed it, so she did too

Dissent 2

• Abella J.:

– If taking hair or teeth impressions is an “ul,mate invasion” of an individual’s privacy, how do we conceptualize a search whereby an individual is required to remove his clothes and swab his penis in front of two uniformed police officers – She agreed with Karakatsanis J.’s reasoning, but did not think that the evidence should be admi^ed

• R. v. Lloyd, 2016 SCC 13

Challenge to the one year mandatory minimum sentence for a controlled substance offence on the basis that it is “cruel and unusual punishment” under s. 12 of the Charter

Once Again:

vs.

Lloyd wins on s. 12

• There are reasonably foreseeable circumstances

where a one-year sentence of imprisonment would be grossly dispropor,onate to the offence

• f possession for the purpose of trafficking a

Schedule I substance

• R. v. Lloyd
• On the s. 7 argument, the Chief Jus,ce was

“unable to accept the submission that the principle of propor,onality in sentencing is a principle of fundamental jus,ce under s. 7 of the Charter.”

R v. Jordan, 2016 SCC 27

• THE SPEEDY TRIAL: what does it mean in

Canada?

• From 1990-2016, s.11(b) was governed by a 4

part test intended to decide if the 9-18 guidelines had been breached

R v. Jordan, 2016 SCC 27

Overview:

• Charges to conclusion of trial took 49.5

months

• Ques,on becomes when will delay be so

unreasonable that a stay will be warranted

• Court divided 5:4 on how to deal with the

“burden [of s.11(b) cases] on an already

• verburdened” Court System

R v. Jordan, the majority

• In an a^empt to simplify, Moldaver, J. creates

a new framework based on the concept that there is a ceiling beyond which delay will be presump)vely unreasonable

• 18 months for cases in Provincial Court, 30

months for cases in Superior Court;

Moldaver, J. in Jordan

• If 18/30 month ceiling exceeded: burden shims

to Crown to rebut presump,on of unreasonableness on the basis of “Excep,onal Circumstances”

• If delay is below the ceiling: defence may show

unreasonable delay IF (1) defence took meaningful steps to expedite proceedings AND (2) case took markedly longer than it should have

Moldaver, J. on “Transi,on Cases”

• The presump,ve ceiling applies to cases currently

in the system, subject to two qualificaCons:

– (1) if delay exceeded, Crown may sa,sfy the Court that there are transiConal excepConal circumstance – (2) If delay is below the ceiling (a) defence ini,a,ve and (b) whether the ,me markedly exceeds reasonableness will be applied contextually.