Complete Cases Chart - Supreme Court of Canada - On the Identity ...

Case Name (Court) 

(Judge) 

Location/Method of Search Relevant Statutes Issues/Holdings 

- (1) whether the search violates s. 8 of theCCharter? - Y/N 

- (2) whether to exclude evidence by s. 24(2)? – Y/N 

Reasoning 

- (1) relevant to s.8 + CASES (Kokesch, Plant, Hunter, Tessling, Edwards) 

- (2) relevant to 24(2) + CASES (Collins) 

SUPREME COURT OF CANADA 

R. v. Rodgers 

(R. v. Jackpine) 

[2006] 1 S.C.R. 554 

(from ON CA) 

Charron J. with 

McLachlin C.J., 

Bastarache and Abella 

JJ. (con); 

Fish, Binnie and 

Deschamps JJ. (dis) 

Identity/Search of 

Person 

(DNA Samples) 

R. v. Mann 

[2004] 3 S.C.R. 59, 

Iacobucci J. with 

Major, Fish, Binnie, 

and LeBel JJ. (con); 

Deschamps and 

Bastarache JJ. (dis) 

Personal Info – 

Body Search 

R. v. Tessling 

[2004] 3 S.C.R. 432, 

Binnie J. with 

- The accused was convicted 

of sexual assault then let go on 

probation. 

- He was convicted prior to the 

proclamation of the 1998 DNA 

Identification Act and was 

therefore not ordered to 

provide a DNA sample when 

sentenced. 

- Prior to the expiration of his 

sentence, the Crown applied 

ex parte under s. 487.055(1)(c) 

of the Criminal Code for 

authorization to take DNA 

samples from the accused for 

inclusion in the national DNA 

databank. A warrant was 

issued. 

- The accused applied for a 

declaration that s. 487.055 

infringed ss. 7, 8, 11(h) and(i) 

of the Charter. 

- The accused was detained by 

police and searched for 

weapons. The search yielded 

drugs. 

- On the strength of 

information gained from two 

informants, police used FLIR 

technology to obtain a thermal 

- Charter, ss. 7, 8, 9, 10, 

11; 

- Criminal Code, ss. 

487.04, 487.051, 487.052, 

487.055, 487.057(1), 

487.06(2), 487.07, 718.2, 

718.3(1); 

- DNA Identification Act, 

ss. 3, 4, 17; and 

- Identification of 

Criminals Act, s. 2(1). 

- Charter, ss. 8, 9, 10(a), 

(b), 24. 

• Charter, ss. 8, 24(2). 

- While the taking of bodily samples for DNA 

analysis without consent constitutes a seizure 

within the meaning of s. 8 of the Charter, 

- (1) Is the collection of DNA samples from 

designated classes of convicted offenders for 

databank purposes reasonable? 

• YES 

- (1) Did the PO search of the suspect violate 

s.8? 

• YES 

- (2) Should the evidence be excluded under 

s. 24(2)? 

• YES 

- (1) Does the police use of FLIR without a 

warrant violate s.8 

• NO 

- (1) Society has an interest in using this new technology to assist law enforcement 

agencies in the identification of offenders. 

- The resulting impact on the physical integrity of the offender is minimal. 

- The use of DNA sampling for databank purposes has been restricted to use as an 

identification tool only. 

- S. 487. 005 targets dangerous convicted offenders – since the accused’s identity as 

a multiple sex offender is a matter of state interest – he loses any reasonable 

expectation of privacy in the identifying information derived from DNA sampling. 

- The reasonable expectation of privacy is lower for convicted offenders. 

- Ref. to Hunter (the individualized credibly-based probability standard established 

in Hunter will be the constitutional norm; DNA collection provisions in the CC fall 

withim the Hunter standard) 

- Ref. also to Mann, Collins, and Murrins 

- (1) The officer was justified in searching the accused for weapons but the intrusive 

checking of his pockets was not justified. 

- Ref. to Plant (core biographical information) 

- Ref. to Edwards (totality of circumstances) 

- Ref.to Kokesch (police have to act in good faith) 

- Ref.to Hunter (purpose of s. 8) 

- (1) The FLIR Camera can be classified as “off-the-wall” technology and not 

“through-the-wall” technology. There is no reasonable expectation of privacy in 

information released from the home, such as heat, because it is not part of the “core 

biographical information” protected by s.8 (Plant). Therefore, FLIR does not 

1


(Judge) 




Reasoning 




Major, Bastarache, 

LeBel, Deschamps 

and Fish JJ. (con) 

(Iacobucci and 

Arbour took no part 

in judgment) 

image of the home of the 

accused 

constitute a search. 



- Ref. to Kokesch (boundaries of a perimeter search) 

- Ref. to Hunter (s. 8 protects people and not places and only protects a reasonable 

expectation of privacy) 

Surveillance – 

FLIR 

R. v. Buhay 

[2003] 1 S.C.R. 631 

The Court: by 

Arbour J., with 


Gonthier, 

Iacobucci, Major, 

Bastarache, Binnie, 

LeBel and 

Deschamps JJ. 

Property Search – 

Bus Station 

Storage Locker 

R. v. S.A.B. 

[2003] 2 S.C.R. 678, 

Arbour J. with 


Gonthier, 



LeBel 

andDeschamps JJ 

(con) 

- The accused stored 

marijuana in a storage locker 

at a bus station. 

- Security smelled it and 

called police, who opened the 

locker and subsequently 

arrested the accused. 

• Police took DNA from the 

aborted foetus of a child 

rape victim to compare with 

a suspect’s DNA 

- Charter, ss. 8, 24(2), 

32(1). 

• Charter, ss. 1, 7, 8, 24. 

- (1) Did the search of a storage locker rented 

to the accused violate his s.8 rights? 

• YES 

- (2) Does the accused have a reasonable 

expectation of privacy in a storage locker 

rented at the bus station? 

• YES 


s. 24(2)? 

• YES 

• (1) Do the DNA Warrant provisions of the 

Criminal Code violate ss. 7 and 8 of the 

Charter? 

• NO 

- (1) The accused rented the locker legitimately and had control and possession of its 

contents at all times. 

- The reasonable expectation of privacy is lower here than that in one’s body, home 

or office. 

- Ref.to Edwards (need both objective and subjective reasonable expectation of 

privacy, followed by a totality of circumstances test) 

- Ref.to Kokesch (boundaries of a perimeter search; police should act in good faith) 

- Ref.to Hunter (to have a s. 8 breach you need a reasonable expectation of privacy) 

- (1) Balancing the private and state interests in determining the reasonableness of 

searches requires a warrant system and one was in place here: the DNA Warrant 

System. 

- Ref. to Hunter (warrantless searches are presumed to be unreasonable) 

- Ref. to Dyment, Stillman, and Collins 


DNA 

2


(Judge) 




Reasoning 



R. v. Law 

[2002] 1 S.C.R. 227, 

Bastarache J. with 

McLachlin C.J. and 

L'Heureux-Dubé, 

Gonthier, 


Binnie, Arbour and 

LeBel JJ. (con) 

- The defendant’s safe was 

stolen and found open. A 

police officer photocopied 

tax documents and sent them 

to revenue Canada. 

- Charter, ss. 8, 24(2); and 

- Excise Tax Act, ss. 288, 

327. 

- (1) Did the police action in searching the 

stolen safe and seizing tax documents violate 

s.8 of the Charter? 

• NO 


s. 24(2)? 

• YES 

- (1) D had a reduced reasonable expectation of privacy in the contents of his stolen 

safe. 

- (2) The police could examine the contents for the purpose of pursuing the thief but 

not on the basis of hunches about the defendant’s tax returns. 

- Ref. to Kokesch (seriousness of the breach; police acting in good faith) 

- Ref. to Edwards (objective and subjective reasonable expectation of privacy 

required) 

- Ref. to Hunter (boundaries of a reasonable search) 

Identity / Search 

of Person – 

Personal Info 

R. v. Fliss 

[2002] 1 S.C.R. 535 





and LeBel JJ. (con) 

Surveillance 

(Wiretap) 

- The accused confessed to an 

undercover police officer that 

he killed a woman. 

- The officer secretly recorded 

the conversation pursuant to 

prior judicial authorization. 

- The officer then reviewed 

the transcript and made 

corrections based on his own 

recollection. 

- Charter, ss. 8, 24, 24(2); 

and 

- Criminal Code, s. 

686(1)(b)(iii). 

- (1) Did the use of the tape and material 

based on the officer’s recollections violate s. 8 

of the Charter? 

• YES (But only the unremembered portions 

of the transcript violated section 8 of the 

Charter). 

- (2) Should the evidence be excluded? 

• NO 

- (1) The officer's testimony was admissible. 

- He was entitled to refresh his memory by means of inadmissible evidence but he 

should not have been allowed, at trial, to recite the transcript beyond what he could 

recall. 

- The testimony was not admissible as past recollection recorded because the 

transcript did not accurately represent his recollection. 

- The Charter breach did not cause or contribute to Fliss's statements. 

- The key elements of the confession were available at trial from the officer's own 

recollection. 

- (2) The evidence should not be excluded under section 24(2) because its admission 

did not affect the fairness of trial, it was not conscripted, and the confession was 

freely given. 

- The Charter breach did not cause or contribute to Fliss's statements. 

- The exclusion of the officer's testimony itself would bring the administration of 

justice into disrepute. 

Lavallee, Rackel and 

Heintz v. Canada (A- 

G); White, 

Ottenheimer and 

Baker v. Canada (A- 

G); R. v. Fink 

[2002] 3 S.C.R. 209, 

- All three cases deal with s. 

488(1) of the Criminal Code, 

which concerns the 

protection, under attorney / 

client privilege, of 

information seized under 

warrant from lawyers’ offices. 

- Charter, ss. 1, 7, 8, 

10(b), 11(b); 

- Criminal Code, s.488(1) 

- (1) Does s. 488(1) of the Criminal Code 

violate s.8 of the Charter? 

• YES 

– Ref. to Stillman and Duarte also. 

- S. 488(1) more than minimally impairs solicitor-client privilege. 

3


(Judge) 




Reasoning 



Arbour J., with 

McLachlin C.J. and 


Bastarache and 

Binnie JJ. (con); 

LeBel with 

L’Heureux-Dubé 

and Gonthier (dis in 

part) 

Personal Info - 

Privileged Info 

R. v. Jarvis 

[2002] 3 S.C.R. 757, 

Iacobucci and 

Major JJ. with 


L’Heureux-Dubé, 

Gonthier, 


Arbour and LeBel 

JJ. (con). 

- A Revenue Canada auditor 

requested records based on tip 

that the accused failed to 

report revenue from the sale 

of his wife’s art in 1990 and 

1991 

- Charter, ss. 7, 8, 24. - (1) Did the auditor’s request for financial 

information violate ss. 7 or 8 of the Charter? 

• NO 

- (1) The information was obtained pursuant to a valid warrant and was therefore 

legitimately available for use. 


- Ref. to Hunter (s. 8 protecting reasonable expectation of privacy) 


Financial Records 

Ruby v. Canada 

(Solicitor General) 

[2002] 4 S.C.R. 3 


McLachlin C.J. 


Gonthier, 



and LeBel JJ. (con.) 

Identity/search of the 

- Ruby made a Privacy Act 

request for access to personal 

information held by the 

Canadian Security Intelligence 

Service CSIS. 

- CSIS refused to disclose any 

information, claiming Privacy 

Act exemptions for 

information obtained in 

confidence where the 

disclosure could reasonably be 

expected to be harmful to the 

conduct of international affairs 

- Charter, ss. 1, 2(b), 7, 8; 

and 

- Privacy Act, ss. 11, 

12(1), 16(1), 16(2), 19, 

21, 22(1), 22(3), 26, 28, 

29, 34(2), 41, 45, 46, 47, 

49, 51, 52. 

- (1) Did the withholding of information 

violate s. 8 of the Charter? 

• NO 

- (1) The s. 8 analysis was combined with the s. 7 analysis. There was no violation 

of s. 7 and there was no infringement of principles of fundamental justice. Therefore, 

there was no violation of s. 8. 

- Ref. to Dyment for analysis 

4


(Judge) 




Reasoning 



person – records 

or the defence of Canada 

R. v. Golden 

[2001] 3 S.C.R. 679 

Iacobucci and Arbour 

JJ with Major, Binnie, 

and LeBel JJ. (con.); 


L’Heureux-Dubé JJ. 

(dis.) 


Person 

(Body Searches) 

- Police observed the accused 

give a substances to two 

individuals in a shop in an 

area known for illegal drug 

trafficking. 

- Golden was arrested and, 

following his arrest, was 

found to have drugs lodged in 

his anus – but police couldn’t 

get it out. 

-Police then forced the 

accused to take the drugs out 

of his anus. 

- Charter, ss. 8, 24(1), 

24(2) 


254(3)(a), 254(3) (b), 487, 

487.04, 487.05, 487.06, 

487.07, 487.08, 487.09 

- Customs Act, s. 98 

- (1) Was the behaviour of the police in 

forcing accused to remove the drugs from his 

body a violation of s. 8? 

• YES 

- (2) should the evidence be excluded? 

• NO 

- (1) Where the circumstances of a search require the seizure of material located in 

or near a body cavity, either the individual being searched should be given the 

opportunity to remove the material himself, or the advice and assistance of a trained 

medical professional should be sought to ensure the safe removal of the material. 

- Given that the purpose of s. 8 of the Charter is to protect individuals from 

unjustified state intrusions upon their privacy, it is necessary to have a means of 

preventing unjustified searches before they occur, rather then simply determining 

after the fact whether the search should have occurred. 

- (2) Although the second search of the accused (the forcible removal of the items 

from his buttocks) violated s. 8 of the Charter, the evidence was admissible pursuant 

to an analysis under s. 24(2) of the Charter. Because the court is dealing with the 

drug trade, which affects society as a whole, not admitting the evidence would bring 

the justice system into disrepute 

Smith v. Canada 

(Attorney General) 

[2001] 3 S.C.R. 902 

The Court (McLachlin 

C.J. and L'Heureux- 

Dubé, Gonthier, 



Arbour and LeBel JJ. 

Personal Information 

provided to one Gov’t 

Agency by the 

suspect used by 

another 

R. v. Araujo 

[2000] 2 S.C.R. 992 

LeBel J. with 


- The plaintiff left Canada 

while on Employment 

Insurance in violation of 

program requirements. At the 

border on his return he filled 

out a form for Canada Customs 

(CCRA). 

- That information was shared 

with the Canadian 

Unemployment Insurance 

Comission. 

- The accused were charged 

with numerous offences for 

their alleged involvement in a 

cocaine-trafficking ring. Most 

of the evidence against them 

- Charter, ss. 6(1), 8. - (1) Does CCRA’s practice of sharing 

information with the CUIC violate s.8 of the 


- Charter, s. 8; 

- Criminal Code, ss. 186, 

186(1)(b), 676(1)(a). 

• No 


expectation of privacy in information 

disclosed to the CCRA? 

• NO 

- (1) Did the use of wiretapping despite 

obtaining the warrant through incorrect 

sources violate the accused’s s. 8 rights? 

• NO 

- Ref. to Hunter (warrantless searches are presumed to be unreasonable; s. 8 

protects a person’s reasonable expectation of privacy) 

- (1) The plaintiff’s privacy interest does not outweigh the CUIC goal of effective 

administration of the Employment Insurance program. 


- (1) Under s. 186(1)(b) of the Criminal Code, wiretapping was an appropriate 

investigative tool where other investigative procedures were unlikely to succeed. 

-The applicant for a wiretap had to establish that other procedures were unlikely to 

succeed. 

- The test for judicial review of a wiretap authorization was whether there was 

5


(Judge) 




Reasoning 




Gonthier, 



and Arbour JJ. (con.) 

Surveillance 

Wiretap/ 

Procedural Fairness 

R. v. Caslake 

[1998] 1 S.C.R. 51, 

Lamer J with Cory, 

McLachlin and 

Major (con); 

Bastarache, 


and Gonthier JJ. 

(dis) 

had been gathered through 

wiretapping. 

- An officer admitted that 

parts of the affidavit did not 

correctly identify one of his 

sources. The officer also 

admitted that he had known 

about this error for several 

weeks before the trial but 

didn’t confess to the mistake. 

- After arresting a suspect for 

possession of illegal narcotics, 

an officer conducted a 

warrantless search of the 

accused’s car and found more 

drugs. 

- NOTE - In a lot of cases where there was a 

problem with the application for the wiretap 

authorization it seems as though the courts 

are finding in favour of the state because of 

the negative social impact of finding for the 

accused – 

- Charter, ss. 8, 24(2). - (1) Was the search of the suspect’s car in 

violation of s.8? 

• YES 

- (2) Should the evidence be excluded under s 

24(2)? 

• NO 

reliable, reasonably believable evidence upon which an authorization could be 

based. 

- Although the officer had not disclosed a minor drafting mistake, the substance of 

the information in the affidavit was not untruthful. 

-The application was allowed – the error wasn’t a violation of s. 8 of the Charter 

- Ref. to Hunter (for there to be a search/seizure there must be reasonable grounds 

to believe that an offence has been committed) 

- Ref. to Plant (misstatements do not affect the validity of the warrant) 

- (1) Unwarranted searches are presumed unreasonable and the Crown failed to 

justify the search. 

- (2) The evidence was not excluded as the breach was minor and excluding the 

evidence would put justice into disrepute. 

- Ref. to Hunter (starting point of s. 8 analysis; purpose of s.8 and what it protects) 


Vehicle 

(warrantless) 

Schreiber v. Canada 


[1998] 1 S.C.R. 841 

L'Heureux-Dubé J, 

with McLachlin, 

Bastarache, Binnie and 

Lamer JJ. (con); 

Iacobucci and 

Gonthier JJ. (dis). 

- Without judicial 

authorization, the Crown 

requested information from the 

Swiss government about the 

accused’s Swiss bank account. 

- Charter, ss. 7, 8, 24(1), 

32(1). 

- (1) Did the Crown’s request to the Swiss 

government for information about an account 

held in that country violate the accused’s s.8 

rights? 

• NO 

- (1) Requesting information didn’t violate the Charter 

- Swiss government actions are not Charter actionable 

- Lamer (con): A search carried out in a foreign country under foreign laws doesn’t 

violate the reasonable expectation of privacy; there was no evidence that the seizure 

was illegal under Swiss law. 

- Ref. to Plant (balancing of the societal interests in protecting individual dignity, 

integrity and autonomy against the need for effective law enforcement) 


- Ref. to Hunter (s. 8 protects the reasonable expectation of privacy) 

Warrantless request 

by Crown for 

Personal Info about 

foreign bank 

accounts of the 

6


(Judge) 




Reasoning 



accused 

R. v. Lauda 

[1998] 2 S.C.R. 683 

Cory J. with 

McLachlin, 

Iacobucci, Major 

and Bastarache JJ. 

(con). 


warrantless - not own 

R. v. Arp 

[1998] 3 S.C.R. 339, 

Cory J. with Lamer 

C.J., L’Heureux- 


Major, McLachlin, 

Iacobucci, 

Bastarache, and 

Binnie (con) 

- Police seized drugs cultivated 

on private property on which 

the accused was trespassing. 

- Suspect consented to having 

hair samples taken for one 

investigation and police used 

it in a second investigation. 

- Charter, ss. 7, 11(d), 

24(2). 

• Charter, ss. 7, 8, 11(d), 

24(2). 

- (1) Did the accused have a reasonable 

expectation of privacy in the 3 rd party private 

property on which the drug cultivation 

occurred? 

• NO 

- (2) Were the s.8 rights of the accused 

violated? 

• NO 

- (1) Did the suspect have a reasonable 

expectation of privacy in the hair samples? 

• NO 

- (1) As a trespasser the accused has no reasonable expectation of privacy in the land 

in question. 


- (1) The hair samples were taken pursuant to a valid warrant, therefore the suspect 

has no reasonable expectation of privacy in them. 

Identity 

Procedural 

Fairness 

R. v. M. (M.R.) 

[1998] 3 S.C.R. 393 


C.J. , L’Heureux- 


McLachlin, 

Iacobucci, 


Binnie (con); Major 

(dis) 

- A Junior High School Vice 

Principal (VP) searched the 

accused in the presernce of 

the police but not at their 

request. He found a bag of 

marijuana on the person of the 

accused. 

- Charter, ss. 8, 10(b), 

24(2), 32(1); 

- Education Act, R.S.N.S. 

1989, c. 136, s. 54(b), (g). 

- (1) Did the school official’s search of the 

suspect violate his s.8 privacy rights? 

• NO 

- (1) The search was reasonable because the VP was not acting on behalf of the 

police. The student had a lower reasonable expectation of privacy as the VP had the 

right to enforce school rules. 

- This lower reasonable expectation applies to elementary and secondary schools but 

not to colleges and universities. 


- Ref. to Hunter (purpose of s. 8) 

Search of Person – 

7


(Judge) 




Reasoning 



by School official 

M. (A.) v. Ryan 

[1997] 1 S.C.R. 157, 

McLachlin J. with 

La Forest, Sopinka, 

Cory, Iacobucci and 

Major JJ. (con); 


(dis). 

- Patient records from 

previous counselling were 

requested at trial 

- Charter, ss. 1, 7, 8, 15. - The majority focused on doctorr/patient 

priveliege. 

- Only the dissent discussed s.8. 

- (1) Should the patient records be produced? 

• YES 

- (1) The patient must establish a reasonable expectation of privacy in the records 

which must then be weighed against society’s interest in a fair trial. 

- Ref. to Hunter (s. 8 protects reasonable expectation of privacy) 


Patient Records 

R. v. Stillman 

[1997] 1 S.C.R. 607, 

Cory J., with 

Lamer CJ., 

Iacobucci and 



Sopinka and 

McLachlin JJ. (dis). 

- The suspect was accused of 

murder. His lawyer refused to 

provide bodily samples but the 

police took them by force on 

two occasions. 

- Charter, ss. 7, 8, 10(b), 

24(2). 

- (1) Did the police’s taking of bodily samples 

under threat of force and without consent 

violate s.8? 

• YES 

- (1) The suspect has a reasonable expectation of privacy in his bodily integrity. His 

reasonable expectation of privacy was lower due to his being in custody but not so 

low as to allow tissue to be taken. 


- Ref. to Kokesch (police acting in good faith; evaluating the seriousness of the 

Charter breach) 

- Ref. to Hunter (warrantless searches presumed to be unreasonable) 


bodily samples 

R. v. Feeney 

[1997] 2 S.C.R. 13, 

Sopinka J. with 

Cory, Iacobucci, 

Major and La 

Forest JJ. (con); 


Gonthier, 

McLachlin and 

Lamer JJ. (dis) 

- During a murder 

investigation the police 

entered the suspect’s home 

and arrested him when they 

saw his shirt covered in blood. 


10(b), 24(2). 

- (1) Did the police’s entry into the accused’s 

home violate his s.8 rights? 

• YES 


s. 24(2)? 

• YES 

- (1) The arrest was invalid because the requirements for a warrantless search were 

not met and because exceptional circumstances are needed to allow an arrest in a 

warrantless search and these were not met. 

- Ref. to Kokesch (police acting in good faith) 

- Ref. to Edwards (need both objective and subjective reasonable expectation of 

privacy) 

- Ref. to Hunter (s. 8 prevents all unreasonable search and seizures) 


8


(Judge) 




Reasoning 



Home (warrantles) 

Dagg v. Canada 

(Minister of Finance) 

[1997] 2 S.C.R. 403, 


C.J., Sopinka, 

McLachlin and 

Iacobucci JJ. (con); 

La Forest, 


Gonthier and Major 

JJ. (dis) 

- Union employee arrival and 

departure time data acquired 

through an ATIP request to 

Revenue Canada was made 

public with personal 

information removed. 

- Charter, ss. 8, 24(2); 

-Privacy Act, ss. 2, 3(i)(j), 

8(2)(m)). 

- Does the information in the logs contain 

personal information (as per Privacy Act)? 

• YES 

- Did the Minister properly exercise his 

discretion? 

• YES 

- (1) LaForest’s dissent discussed the reasonable expectation of privacy Revenue 

employees had in information (sign-in logs) collected as backups in case of fire. 

- Ref. to Plant (core biographical information relating to informational privacy) 



Employment Info 

R. v. Belnavis 

[1997] 3 S.C.R. 341, 

1997 CanLII 320 

(S.C.C.) 

Cory J., with 

Lamer C.J., 


Gonthier, 

McLachlin, Major 

and Sopinka JJ. 

(con); Iacobucci 

(dis in part); La 

Forest (dis) 


Vehicle – Accused 

not owner but use 

permitted 

- The accused was pulled over 

for a traffic violation. While 

the accused was searching for 

documents, a passenger was 

questioned. 

- Stolen goods were found in 

the vehicle, which belonged to 

a friend of the accused and 

was being used with 

permission. 

- Charter, ss. 8, 24(2). - (1) Does the accused have a reasonable 

expectation of privacy in the vehicle? 

• YES 

- (2) Does the passenger have a reasonable 

expectation of privacy in the vehicle 

• NO 

- (3) Did the actions of the officers constitute 

a search in violation of s.8? 

• YES (for driver, not for passenger) 


s.24(2)? 

• NO 

- (1) The driver had permission to use the car and thus had a reasonable expectation 

of privacy. 

- (2) The passenger’s reasonable expectation of privacy is judged on the totality of 

circumstances and here her connection to the car was too tenuous to ground a 

reasonable expectation of privacy. 

- (3) The s. 8 breach was merely technical and therefore the evidence should not be 

excluded under 24(2) 

- (4) A car is not as protected as a house and the car of a friend even less so. 


- Ref. to Hunter (s. 8 protects reasonable expectation of privacy) 

- Ref. to Kokesch (facts compared – and kokesch was distinguished) 

9


(Judge) 




Reasoning 



R. v. Evans 

[1996] 1 S.C.R. 8 

Sopinka J., with 

Cory and Iacobucci 

JJ.; LaForest and 

L'Heureux-Dubé JJ. 

(con); Gonthier and 

Major JJ. (dis) 


Home, Sniffing 

R. v. Edwards 

[1996] 1 S.C.R. 128 


C.J., Sopinka, 

Major, McLachlin, 

Iacobucci, La 

Forest, Gonthier, 

and L'Heureux- 

Dubé JJ. (con) 

- An officer knocked on the 

door of the suspect’s house, 

identified himself, smelled 

marijuana and immediately 

arrested the suspect. 

- Police seized drugs from the 

apartment of the girlfriend of 

the accused. 

- Charter, ss. 8, 24(2). - (1) Did the police officer “sniffing” inside 

the suspect’s home constitute a search in 

violation of s.8? 


11, 24; 

- Highway Traffic Act, 

R.S.O. 1990, c. H.8, s. 

217(2); 

- Narcotic Control Act, 

R.S.C., 1985, c. N-1 , s. 

4(2). 

• YES 


s.24 (2)? 

• NO – the officer acted in good faith 

- (1) Did the police search of the girlfriend’s 

apartment violate s.8 of the Charter? 

• NO 


expectation of privacy in his girlfriend’s 

property? 

• NO 

- (1) The reasonable expectation of privacy in one’s doorway was waived to 

facilitate social communication. When the terms of this waiver are exceeded (as they 

were by the officers in this case) the intrusion is a search and requires judicial 

authorization. 

- Ref. to Hunter (warrantless search is presumed to be unreasonable) 

- Ref. to Kokesch (boundaries of a perimeter search) 

- (1) The accused denies ownership of the drugs and was just a visitor at the 

apartment. (He did not contribute to the rent.) 

- Ref. to Plant (informational privacy core biographical information) 


protects people and not places) 

Property Search - 

not owner 

Michaud v. Quebec 


[1996] 3 S.C.R. 3 

Lamer C.J. with 

Gonthier, McLachlin 

and Iacobucci JJ. 

(con); L'Heureux-Dubé 

J. (con); Sopinka, 

Major, Cory, La 

Forest JJ. (con). 

Surveillance 

- The appellant was the target 

of an authorized wiretap 

which led to his arrest. 

- The appellant intended to sue 

for damages and sought an 

order to open the sealed 

packet and copies of the 

wiretap recordings 

- The motion was dismissed as 

premature since the appellant 

was neither an accused nor a 

- Criminal Code, R.S.C. 

1985, c. C-46, ss. 122, 

184.1, 185(1) (e), 186(1), 

187, 189(1), 189(5), 190, 

193(2)(c), 196(1); 


11(d), 24. 

- (1) Did denying access to this information 


• YES 

- S. 24(2) N/A 

- (1) The trial judge should have given the appellant an opportunity to show that the 

initial authorization was invalid, which would have entitled the appellant to access to 

the sealed packet. 

- (2) The judge did not err in denying the request for access to the tapes and 

transcripts: access to recordings is not necessary to prove s.8 Charter rights were 

infringed. 

- Ref. to Hunter (an interception executed on less than reasonable and probable 

grounds will violate the requirements of s. 186(1)(a) of the Criminal Code and thus 

constitute an "unreasonable search or seizure" under s. 8.) 

10


(Judge) 




Reasoning 



(Wiretap) 

R. v. Jacques 

[1996] 3 S.C.R. 312 

Gonthier J. with 

Cory and Iacobucci JJ. 

(con); Sopinka and 

Major JJ. (dis). 


person (body search) 

R. v. Bernshaw 

[1995] 1 S.C.R. 254, 

Sopinka J. with La 

Forest, Gonthier, 

McLachlin and 


Cory J. and Lamer 

C.J. (con); 

Iacobucci (con). 

plaintiff. 

- Police received information 

at the U.S./Canada border from 

border patrol that there was a 

vehicle trying to cross the 

border at an uncontrolled point 

of entry. 

- The tip led police to two cars: 

one had a grandmother in it, 

the other contained the 

accused. 

- Police seized alcohol from 

the trunk of the accused. 

- An officer pulled over the 

accused under suspicion of 

driving under the influence 

- A breath test was conducted 

but the officer didn’t ensure 

the recommended 15 minute 

waiting period. 


- Customs Act, ss. 11(1), 

99(1)(f), 159. 


24(2). 

- (1) Was the search of the trunk arbitrary and 

therefore in violation of s. 8 of the Charter? 

• NO 


• YES 

- (1) Was the breathalyser test administered in 

breach of the accused’s reasonable 

expectation of privacy and in violation of s. 

8? 

• NO 

- (1) The police received information about the vehicle in advance of approaching it. 

They were told that there was a vehicle near the border at an uncontrolled point, 

which already raised suspicion. The search wasn’t arbitrary because the police had a 

reasonable belief that there could be danger at the border crossing point. 

- (2) The evidence would not have been found without breaches of s.9 of the 

Charter. Therefore, the admission of the evidence would render the trial unfair and 

should be excluded. 

- Ref. to Hunter (SCC has previously referred to the standard of "reasonable and 

probable grounds" as one of "credibly-based probability; purpose of s. 8) 

- Ref. to Collins 

- (1) The reasonable expectation of privacy is only mentioned in L'Heureux-Dubé’s 

concurring decision. She holds that the reasonable expectation of privacy of drivers 

is low because they accept monitoring by police as a condition of being licensed to 

drive and because impaired driving is a serious issue requiring state attention. 

- Ref. to Hunter (s.8 protecting reasonable expectation of privacy) 


Breathalyzer 

R. v. Silveira 

[1995] 2 S.C.R. 297, 

Cory J. with 

Sopinka, Gonthier, 

Iacobucci and 


L’Heureux-Dubé J. 

(con); La Forest J. 

(dis). 

- While a warrant was 

pending, the police entered the 

home of the accused and 

secured it to ensure that 

evidence wasn’t removed. 

- Charter, ss. 8, 24(2). - (1) Did the police’s unauthorized entry of 

the home violate s. 8? 

• YES 


s. 24(2)? 

• NO 

- (1) The police should not have entered as they did, but the evidence they found was 

in this house and would have been found in the subsequent warranted search. 

- (2) In future cases such evidence likely would be excluded. 


- Ref. to Kokesch (police acting in good faith) 

- Ref. to Hunter (purpose of s. 8 to protect reasonable expectation of privacy) 

11


(Judge) 




Reasoning 



Property – Entry 

A. (L.L.) v. B. (A.) 

[1995] 4 S.C.R. 536, 


Sopinka, Cory and 


L’Heureux-Dubé J. 

with La Forest and 

Gonthier JJ. (dis in 

part). 

- The respondant was charged 

with sexually assaulting L.L.A 

when she was a child 

- The defense subpoenaed all 

institutional records relating 

to L.L.A 

- Charter, ss. 7, 8, 15. - To what extent is the defense entitled to 

subpoena medical and therapeutic records 

relating to complainants held by third parties 

in sexual assault trials? 

• To a limited extent only 

-(1) The use of state power to compel the production of private records is justified 

where: (a) the accused cannot obtain the information by any other reasonable means; 

(b) the use is limited to fulfil the right to make a full answer and defence; (c) 

arguments urging production don’t rest on discriminatory assumptions and 

stereotypes; and (d) there is proportionality between the salutary and deleterious 

effects of production. 


- Ref. to Hunter (s. 8 protects only a reasonable expectation of privacy) 


Medical Info 

143471 Canada Inc. 

v. Quebec (A-G); 

Tabah v. Quebec (A- 

G) 

[1994] 2 S.C.R. 339 

Cory J. with 

Sopinka, Iacobucci 

and Lamer C.J. 

(con); La Forest, 


and McLachlin, JJ. 

(dis). 

- Commercial documents were 

seized from the accused under 

s.40 and 41 of the Act 

Respecting the Ministre de 

Revenu. 

- The accused challenged the 

validity of 40/41 using ss. 7 

and 8 of the Charter. 

- Charter, ss. 7, 8; 

-Act Respecting the 

Ministre de Revenu 

- (1) Is it reasonable for courts to grant an 

interlocutory injunction on the use of 

information whose seizure is under review? 

• YES 

- (1) A consideration of three criteria in this case leads to the conclusion that the 

impounding orders should be maintained.The criteria are: (a) the seriousness of the 

question to be tried; (b) the possibility of irreparable harm to the applicant if the 

interim order is refused; and (c) the balance of inconvenience caused to the parties 

by the interim order. 

- Ref. to Hunter (s. 8 protects a reasonable expectation of privacy) 


Documents – 

Regulatory 

R. v. Colarusso: 

[1994] 1 S.C.R. 20 

La Forest J. with 



Iacobucci and 


- The accused had a double 

car crash and was suspected of 

being drunk. 

- No breath test was 

administered and the accused 

refused the police’s request for 

a blood sample. 

- The coroner got the sample? 

- Charter, ss. 1, 8, 24(1), 

(2); 

-Coroner’s Act, s.16(2). 

- (1) Does s. 16(2) of the Coroner’s Act 

violate s.8? 

• Unnecessary to decide – the search was 

invalid. 

- (2) Is s.16(2) saved by s.1? 

- (1) The seizure was illegal either because the police used the coroner as an agent or 

because they took the results of a valid search from the coroner. 

- (2) Evidence could legitimately have been obtained and its exclusion would put the 

administration of justice into disrepute. 


12


(Judge) 




Reasoning 



Lamer, Cory, 

McLachlin and 

Major JJ. (con). 


Accused’s Info 

Comité paritaire de 

l'industrie de la 

chemise v. Potash; 

Comité paritaire de 

l'industrie de la 

chemise v. Sélection 

Milton 

[1994] 2 S.C.R. 406, 


Lamer C.J., Cory, 

Iacobucci, 

McLachlin and 

Sopinka JJ. (con); 

L'Heureux-Dubé J. 

with Gonthier and 

Major JJ. (con). 

under 16(2) and gave the 

results to police. 

- Provincially mandated 

inspectors suspected illegal 

labour practices but were 

barred from entering the 

premises to inspect them. 

- The defendants claimed that 

s.22(e) of the Act Respecting 

Collective Agreement 

Decrees, which allowed for 

inspections, violated s. 8. 

- Charter, ss. 1, 8, 33; 

- Act Respecting 

Collective Agreement 

Decrees, s.22(e). 

• N/A 


s. 24(2)? 

• NO 

- (1) Does the power of inspectors to enter 

premises for inspections violate s. 8 of the 


• NO 

- (1) The importance of ensuring proper working conditions outweighs privacy 

rights. The reasonable expectation of privacy with respect to inspection-related 

documents is not high. 

- Ref. to Plant (informational privacy; reasonable expectation of privacy protecting 

core biographical information) 

- Ref. to Hunter (purpose of s. 8; s.8 protects only a reasonable expectation of 

privacy) 


Regulatory 

R. v. Boersma 

[1994] 2 S.C.R. 488 

Iacobucci J. with 


Cory and Major JJ. 

(con). 

- The accused was charged 

with cultivating marijuana on 

Crown land. Police spotted 

plants in plain sight and 

subsequently arrested and 

charged the accused. 

- Charter, s. 8. - (1) Did the accused have a reasonable 

expectation of privacy in the location of his 

growing operation? 

• BCCA: NO 

• SCC: appeal dismissed 

- (1) The accused had no reasonable expectation of privacy as he was using Crown 

land. Police spotted the plants from a nearby road and in no way violated Mr 

Boersma’s s.8 privacy rights. 


Crown Land; 

R. v. Borden 

[1994] 3 S.C.R. 145, 

- The accused in a sexual 

assault case consented to 

police taking and using a 

- Charter, ss. 8, 10(a), (b), 

24(2). 

- (1) Does the use of DNA evidence in 

investigations other than those for which 

permission was granted constitute a violation 

- (1) The accused should have been made to understand that the police intended to 

use the DNA in both investigations. 

13


(Judge) 




Reasoning 



Iacobucci J., with 

Major, La Forest 


(con); Lamer and 

Gonthier JJ. (con 

with reasons); 

McLachlin J. (con 

with reasons) 

DNA sample for 

“investigations” 

- Police used the DNA to link 

the suspect to a previous 

crime. 

of s.8? 

• YES 

- (2) Should the evidence be excluded under s. 

24(2)? 

• YES 

- Ref. to Dyment and Mellenthin 


DNA 

Baron v. Canada 

[1993] 1 S.C.R. 416, 


LaForest, 


Cory, McLachlin 


(con); Stevenson 

took no part. 

- Revenue Canada conducted 

searches of the suspect’s 

office and home and seized 

documents. 

- The suspect challenged 

Revenue Canada’s authority 

based on ss. 7, 8 and 15 of the 

Charter. 


11(d), 15; 

- Income Tax Act, 

s.231.3. 

- (1) Does s. 231.3 of the Income Tax Act 


• YES 

- (1) S. 231.3 requires judges to issue warrants at the request of Revenue Canada. S. 

8 requires judicial discretion in issuing warrants – here Parliament has limited the 

matters that judges can consider, contrary to s.8. Therefore, s. 231.3 is no longer 

valid. 



Office / Regulatory 

R. v. Macooh 

[1993] 2 S.C.R. 802, 


La Forest, 


Gonthier, Cory, 

McLachlin and 

Iacobucci JJ. (con). 

- A police officer observed the 

accused running several stop 

signs and began pursuit. The 

accused attempted to hide in 

the apartment of a friend and 

the officer followed him into 

the apartment.. 

- Charter, ss. 7, 9. - (1) Did the police officer’s entry into the 

apartment in hot pursuit of the suspect violate 

ss. 7 or 9 of the Charter? 

• NO 

- (1) This case relates to a reasonable expectation of privacy only insofar as s.7 

guarantees a reasonable expectation of privacy. In this case the accused had no 

reasonable expectation of privacy because the courts won’t require an officer to 

abandon a chase at the suspect’s door. 


Apartment – not 

owner 

14


(Judge) 




Reasoning 



R. v. Dersch 

[1993] 3 S.C.R. 768, 

Major J. with 

Lamer C.J., La 

Forest, Sopinka, 

Cory, McLachlin 


(con); L'Heureux- 

Dubé and Gonthier 

JJ. (con). 

- The accused was involved in 

a traffic accident and was 

suspected of being under the 

influence of alcohol. 

- He rrefused to allow a blood 

sample to be taken but police 

got one from doctors. 


32(1). 

- (1) Was the trial judge correct in allowing 

the blood evidence to be used at trial even 

though it was taken without the consent of the 

accused? 

• NO 


s. 24(2)? 

• YES 

- (1) The accused has a reasonable expectation of privacy in his medical 

information. The taking of the blood sample without consent and sharing of that 

information with the police violated s.8. Information was taken without warrant so is 

presumed illigitmate and the Crown failed to rebut this presumption. 

- (2) Blood test results were invalid and without that evidence the Crown had no 

case. 



Blood Sample 

Weatherall v. Canada 


[1993] 2 S.C.R. 872, 




McLachlin, Iacobucci 

and Major JJ. (con). 

Prison - inmate 

and cell searches 

- A prisoner complained about 

female / male body searches 

and random cell checks. 

- Charter, ss. 1, 7, 8, 15. - (1) Does the frisking of a male inmate by a 

female guard violate ss. 7, 8 or 15? 

• NO 

- (2) Does female guard random cell searches 

violate s. 8? 

• Trial Judge: YES; 

• CA and SCC: NO 

- (1) Frisking and cell searches are necessary for prison security. Prisoners have no 

reasonable expectation of privacy in their person or their cell. Since there is no 

reasonable expectation of privacy there is no s.8 issue. 

R. v. Plant 

[1993] 3 S.C.R. 281 


Lamer, LaForest, 

Gonthier, Cory and 

Iacobucci JJ. (con); 

McLachlin J. (con). 


Perimeter; Hydro 

Usage 

- Police checked electricity 

use in the suspect’s home and 

conducted a warrantless 

perimeter search of the home 

in which marijuana was being 

grown. 

- Charter, ss. 8, 24(2). - (1) Did the warrantless perimeter search of 

the building constitute a search in violation of 

s.8? 

• YES 

- (2) Did the electronic monitoring of the 

accused’s electricity use constitute a search? 

• NO 


- (1) There were no exigent circumstances that justified the police’s actions in 

conducting a perimeter search without a warrant. 

- (2) The accused had no reasonable expectation of privacy with respect to his 

electricity use because the information doesn’t reveal intimate details. 

- (3) The evidence was not excluded because police acted reasonably and in keeping 

with the law at the time. The electricity use would have been enough to get a warrant 

for a search. 

- Ref. to Kokesch (boundaries of a home perimeter search) 

- Ref. to Hunter (s. 8 protecting people and not places) 

15


(Judge) 




Reasoning 



s.24(2)? 

• NO 

R. v. Wise 

[1992] 1 S.C.R. 527, 

Cory J. with 

Gonthier and 

Stevenson JJ. and 

Lamer C.J. (con); 

La Forest J. (dis), 

Sopinka and 

Iacobucci JJ. (dis) 

- Police installed a tracking 

device in the suspect’s car 

after a warrant had expired 

and used the information 

gained against the suspect on 

another charge. 


24(2). 

- (1) Did the warrantless installation of a 

tracking device in the suspect’s car constitute 

a breach of his s.8 rights? 

• YES, but a minor infraction only 


s.24 (2)? 

• NO 

- (1) There is a lower reasonable expectation of privacy in one’s car and the tracking 

device was unsophisticated so represented only a slight violation of s.8. 

- (2) The evidence was not excluded because police were acting in good faith in 

attempting to stop a series of murders in the area. 

- Ref. to Kokesch (police must act in good faith when conducting a search) 

- Ref. to Hunter (s. 8 protects people and not places) 


tracking device in 

car 

R. v. Wiggins 

[1990] 1 S.C.R. 62, 

La Forest J., with 

Dickson C.J., 


Sopinka, Gonthier 

and McLachlin JJ. 

(con); Lamer J. 

(con) 

- A police informant recorded 

conversations with the 

accused, an alleged drug 

trafficker, without his 

knowledge or consent. 

- Charter, ss. 1, 8, 24(2). - (1) Did the police’s use of a “body pack” on 

the informant to record conversations violate 

s.8 

• YES 


24(2)? 

• YES 

- This decision follows Duarte 


audio 

R. v. Ladouceur 

[1990] 1 S.C.R. 1257 

Cory J. with 

Lamer, L’Heureux- 



(con); Sopinka, 

- The accused was randomly 

stopped by police for a license 

and insurance check. 

- He admitted his license was 

suspended and was sentenced 

by a Justice of the Peace. 


24(1), (2) 

- (1) Do random traffic stops without 

reasonable cause violate s.8 of the Charter? 

• NO 

- (1) The stops violate s.9 but not s.8: police have the statutory right to randomly 

conduct license checks. 

- Ref. to Hunter (unreasonable search only takes place if there is a breach of 

reasonable expectation of privacy) 

16


(Judge) 




Reasoning 



Wilson, La Forest 

JJ. and Dickson C.J. 

(con). 

Traffic Stops 

R. v. Kokesch 

[1990] 3 S.C.R. 3, 


Wilson, LaForest 


(con); 

Dickson, 


and Cory JJ. (dis). 

- Police conducted a perimeter 

search of the suspect’s home 

without reasonable cause or 

legal authority. 

- Charter, ss. 1, 8, 24(2). - (1) Did the police perimeter search violate 

s.8? 

• YES 


s. 24(2)? 

• YES (4-3 decision) 

- (1) The suspect had a reasonable expectation of privacy in the perimeter of his 

home and the police lacked reasonable cause or lawful authority to search it. 

- Ref. to Hunter (s. 8 protecting reasonable expectation of privacy) 


Home – Perimeter 

R. v. Wong 

[1990] 3 S.C.R. 36 


Dickson, 

L'Heureux-Dubé 


(con); Lamer and 

McLachlin JJ. 

(con); Wilson (dis). 

- The accused rented a hotel 

room for gambling. 

-Police used video cameras to 

record the activities in the hotel 

room. 


24(2); 


178.13(2)(c), (d) 

(now s.186(4)(c), (d)). 

- (1) Does the use of video recording by the 

police without judicial authorization 

constitute a search? 

• YES 

- (2) Does this search violate s. 8 of the 


• YES 

- (1) This case follows Duarte where unauthorized electronic audio surveillance 

violated s. 8 of the Charter. 

• This rule extends to all technologies. 

• If a free and open society cannot brook the prospect that agents of the state 

should, in the absence of judicial authorization, have the right to record the words 

of whomever they choose, it is equally inconceivable that the state should have 

unrestricted discretion to target whomever it wishes for surreptitious video 

surveillance (para 15) 

- Parliament (not the courts) should dictate the law with regard to the use of video 

recording. 

Unwarranted use 

of video 

surveillance to 

monitor actions of 

the accused in a 

hotel room 

R. v. Duarte 

[1990] 1 S.C.R. 30, 


- An informant’s apartment 

was monitored using audio 

recording equipment. 

- The informant and officer 


s. 24(2)? 

• YES 

- Charter, ss. 1, 8, 24(2). - (1) Does making an audio recording without 

the consent of the accused violate s.8? 

• YES 

- Ref. to Hunter (purposive approach of s. 8 analysis) 

- Ref. to Dyment 

- (1) A reasonable expectation of privacy in private communications does not exist if 

the state can record private communications, without constraint, provided only that 

it has secured the agreement of one of the parties to the communication. 

- Audio recording is not the same as officers repeating their version of a 

17


(Judge) 




Reasoning 



Dickson C.J., 


Sopinka, Gonthier 


(con); Lamer (con 

in part). 


Apartment; 


audio recording 

R. v. Mckinlay 

transport ltd. 

[1990] 1 S.C.R. 627, 

Wilson J. with 

Lamer, La Forest 

and L'Heureux- 

Dubé JJ. (con); 

Sopinka J. (con). 

consented to the recording but 

the accused did not. 

- Revenue Canada requested 

documents from the accused 

for an audit. The accused 

failed to deliver them. 

- (2) Can it be justified under s.1? 

• NO 


s. 24(2)? 

• NO 

- Charter, ss. 1, 8. - (1) Does it violate s.8 of the Charter for 

Revenue Canada to demand information for 

tax purposes? 

• NO 

conversation. 

- Audio recording of a suspect should require a warrant / judicial authorization. 

- (3) The violation was a result of a reasonable misunderstanding on the part of the 

police and thus the use of the officer’s notes drawn partially from the audio 

recording would not bring the administration of law into disrepute. 

- Ref. to Hunter (purpose of s. 8 and that it only protects a reasonable expectation 

of privacy). 

- (1) The document requested was sought under a regulatory regime and the Hunter 

test is ill suited to regulatory affairs. 

- Ref. to Hunter (purpose of s. 8 and that it only protects reasonable expectation of 

privacy). 


Tax Information 

Thomson 

Newspapers Ltd. v. 

Canada (Director of 

investigation and 

research, restrictive 

trade practices 

commission) 

[1990] 1 S.C.R. 425, 

- A corporation was accused 

of “predatory pricing” and 

required to provide 

information and testify at 

Committee under s.17 of the 

Combines Act. 


11(c), 13, 24(2); 

- Combines Act, s. 17. 

- (1) Does s. 17 of the Combines Act violate 

ss. 7 and 8 of the Charter? 

• NO 

- (1) The Combines Act is regulatory in nature. Suspects have a low reasonable 

expectation of privacy in the particular corporate information requested for the 

purpose of the investigation 

- (2) Seizure refers to tangible objects, not thoughts, so the requirement to testify 

doesn’t violate s.8. 


(s.8) La Forest J. 

with L’Heureux- 

Dubé J. (con); 

Sopinka J. (dis in 

part); Wilson and 

Lamer JJ. (dis) 

18


(Judge) 




Reasoning 




Regulatory 

R. v. Thompson 

[1990] 2 S.C.R. 1111 

Sopinka J.;with 

Dickson, Lamer and 

L’Heureux-Dubé JJ 

(con); Wilson J. 

(dis); LaForest J. 

(dis); McIntyre took 

no part. 

- Police had a a series of 

authorizations to monitor a 

suspect’s communications and 

they discovered a plan to 

smuggle marijuana. 

- Charter, ss. 8, 24(2). - (1) Did unsupervised monitoring of public 

payphones and surreptitious entry into private 

dwellings violate s.8? 

• NO 

- (1) The search was conducted with authorization and was therefore not in violation 

of.s.8. Authorizations were limited to the suspects and not overly broad. 

- Ref. to Hunter (purpose of s. 8). 


wiretap (on 

payphones) 

R. v. Hufsky 

[1988] 1 S.C.R. 621 

Le Dain J. with 

Dickson C.J., Beetz, 

Estey, McIntyre, 

Wilson, and La 

Forest JJ. (con). 

- Police stopped the accused’s 

car for a random license/ 

insurance check. They 

detected alcohol and the 

accused refused a breath test. 

- Charter, ss. 1, 8. - (1) Did the police’s use of “spot checks” 


• NO 

- (1) The police’s request that appellant surrender his licence and insurance card for 

inspection did not constitute a search because there is no reasonable expectation of 

privacy where a person is required to produce evidence of regulatory compliance. 


Vehicle; Personal 

Info –Breathalyser 

R. v. Beare; R. v. 

Higgins 

[1988] 2 S.C.R. 387 


Dickson, Beetz, 


Lamer, Wilson, 

Le Dain and 

L’Heureux-Dubé JJ. 

- The accused challenged the 

police practice of 

fingerprinting accused (not 

only convicted) prisoners 

- Charter, ss. 1, 7, 8, 9, 10, 

11(c), (d), 24(1); 

-Identification of 

Criminals Act, s.2. 

- (1) Does the fingerprinting of non-convicted 

prisoners by police under s.2 of the 

Indetification of Criminals Act violate ss. 

7,8,9,10 and 11 (c) and (d) of the Charter? 

• –NO with regard to s.8 

- (1) This case focused largely on s.7, which was found not to be violated. 

- S. 8 was also found not to be infringed. 


19


(Judge) 




Reasoning 



(con). 


Fingerprinting 

R. v. Dyment 

[1988] 2 S.C.R. 417, 

Lamer J. with 

Beetz,and Wilson JJ 

(con); La Forest J. 

and Dickson C.J. 

(con); McIntyre J. 

(dis); Le Dain took 

no part. 

- A doctor took blood from a 

car accident patient without 

consent then gave it to police 

who had no idea suspect was 

drinking / doing drugs. 

- Suspect charged with DUI. 

- Charter, ss. 7, 8, 24(2). - (1) Does the accused have a reasonable 

expectation of privacy in the blood taken by 

the doctor? 

• YES 

- (1) The police’s taking of the blood constituted a search and as they lacked judicial 

authorization it was unreasonable and violated s.8. 

- Ref. to Hunter (warrantless searches are presumed to be unreasonable). 

- Ref. to Collins (used to determine that evidence should be excluded). 


Blood Sample 

R. v. Simmons 

[1988] 2 S.C.R. 495 

Dickson C.J. with 

Beetz, Lamer and La 

Forest JJ (con); Wilson 

J. (con); McIntyre and 

L'Heureux-Dubé JJ. 

(dis). 



Hunter v. Southam 

Inc 

[1984] 2 S.C.R. 145 

Dickson J. with 

- The appellant was arrested at 

customs for smuggling drugs 

that she was carrying on her 

body. 

- The appellant was taken into 

a search room and shown a 

sign on the wall which set out 

ss. 143 and 144 of the 

Customs Act., which provide 

authority for conducting 

personal searches. 

- The appellant undressed and 

removed some of her clothes, 

revealing white adhesive 

bandages around her midriff. 

- Concealed in the bandages 

were plastic bags with 

cannabis resin. 

• Pursuant to s. 10(1) of the 

Combines Investigation Act 

(CIA), combines inspectors 

raided the Southam offices 

in Edmonton. 


24(2); 

- Constitution Act, 1982, 

s. 52; 


618(2)(a) [rep. and subs. 

1974-75-76, c. 105, s. 

18(2)]; 

- Customs Act, ss. 143, 

144, 203. 

- Charter, ss 8, 24(2); 

- Combines Investigation 

Act, s.10(1) and 10(3). 

- (1) Did these searches violate s. 8 of the 


• NO 


• NO 

- (1) Do ss. 10(1) and 10(3) of the CIA violate 

s.8 of the Charter? 

• YES 

- (1) People have a lower expectation of privacy when crossing the border, 

- Sovereign states have the right to control who and what enters their boundaries. 

- Customs officers had reasonable grounds for suspecting that the appellant had 

contraband hidden about her body. 

- However, in this case the search was not conducted in a reasonable manner because 

of the denial of the right to counsel and the absence of any explanation to the 

appellant of her rights under the Customs Act. 

- Pointing to a sign on the wall is not sufficient. 

- There was no evidence that the appellant read the provisions or understood them. 

- (2) Admitting the evidence would not have brought the administration of justice 

into disrepute. 

- The customs officers acted in good faith in exercising the statutory requirements 

existing at the time of the search. 

- Ref. to Hunter (s. 8 purpose and Customs Act not meeting Hunter standard 

because reasonable expectation of privacy is lower at airports) 

- (1) S. 8 entitles the individual to a reasonable expectation of privacy. 

• This reasonable expectation of privacy requires that a judge or other neutral 

individual balance the rights of the accused and the rights of society (judicial 

authorization). 

• A justifiable search also requires reasonable and probable grounds as a minimum 

20


(Judge) 




Reasoning 



Ritchie, Beetz, 


Chouinard, Lamer 

and Wilson JJ. 

(con); Laskin C.J. 

took no part. 


Office 

- (2) Can this violation be justified under s.1? 

• NO (Court stuck down CIA 10(1) and 10 

(3)). 

standard. 

AB COURT OF APPEAL 

R. v. Yague 

2005 ABCA 140 

Côté J.A. with 

Wittman and Russell 

JJ.A. (con) 

*Final Level 

Property - vehicle 

search 

- Police stopped the accused 

after he violated traffic laws. 

- The police then recognized 

the accused as member of an 

illegal drug trade party. 

- In addition, Lau, a 

passenger in the car, was on 

probation and had breached 

the conditions of probation.. 

- The accused had cocaine in 

his car and was arrested. 

Charter, ss. 8, 9, 24(2). 

- (1) Was the stop arbitrary? 

• NO - because there was already a traffic 

violation that allowed police to stop the 

accused. 


• NO 

- (1) Where the police have reasonable and probable grounds for arrest, such as a 

traffic violation, a search incidental to an arrest is legal and not in violation of section 

8 of the Charter. 

- The police were justified in searching the vehicle upon discovering that Lau was in 

breach of the conditions of his probation. 

- (2) The evidence should not be excluded under s. 24(2) of the Charter. 

- NOTE - Evidence is excluded under s. 24(2) where its admission would tend to 

render the trial unfair. 

• As outlined in R. v. Stillman (1997), the approach when considering trial fairness 

requires that the evidence be classified as either conscriptive or non-conscriptive. 

• In this case, the evidence sought to be excluded, namely, cocaine and drug 

trafficking paraphernalia, is non-conscriptive evidence found while searching the 

vehicle and not as a result of compelling the appellant to incriminate himself. 

R. v. Chang 

2003 ABCA 293 

Russell J.A.; 

Wittman and Smith 

JJ.A. (con). 

*Final Level 


search 

- A mall security guard seized 

ecstacy pills from the accused 

who was in car in a mall 

parking lot. 


24(2); 

- Controlled Drugs and 

Substances Act, s. 5(2). 

• NOTE - The Charter doesn’t apply in 

this case because the security guard and 

the accused were both private citizens 

(this was also seen in R. v. Lunn, where 

the doctor wasn’t an agent of the state). 

- (1) Had the Charter applied, would there 

have been a violation of s. 8? 

• NO 


- Ref. to Wilson, Caslake, and Stillman. 

- (1) Neither a search nor a seizure is unlawful if conducted with the consent of the 

accused. 

• The search and seizure were conducted in an automobile in the parking lot of a mall 

where one might have a reduced expectation of privacy: 

• There is no reasonable expectation of privacy in respect of things that are in plain 

view. 

- (2) Given the non-conscriptive nature of the evidence, the minor breach and the 

gravity of the charge, the administration of justice would not be brought into disrepute 

by admitting the evidence pursuant to s. 24(2) of the Charter. 

- Ref. to Plant (drug charges were serious and the exclusion of the evidence would 

bring the justice system into disrepute) 

- Ref to Edwards (the onus of proving that a search is unreasonable lies with the 

21


(Judge) 




Reasoning 



R. v. North 

2002 ABCA 134 

McMeekin J.A.; 

Lewis and Nation 

JJ.A. (con). 

*Final Level 


Person - DNA 

Sample 

R. v. Daley 

2001 ABCA 155 

McClung J.A.; 

Sulatycky and 

Fruman JJ.A. (con) 

*Final Level 




with possession of child 

pornography. 

-The trial judge didn’t require 

him to provide a DNA 

sample. 

- The accused bought a plane 

ticket with cash and was 

stopped at the airport the next 

day. 

- A warrantless search of his 

suitcase was conducted. 

- Large amounts of cash and 

traces of cocaine were found. 


163(1), 163.1, 163.1(4), 

487.051, 487.051(1)(a), 

487.051(3), 487.052, 

487.052(2), 487.054, 

487.06(1), 487.06(2), 673, 

718, 718.1, 718.2, 

742.3(1); 


ss. 3, 4. 

- Charter, ss. 8, 11, 11(d), 

24(2). 

- Criminal Code, s. 490, 

490(1), 490(6), 490(9), 

490(9.1); 

- Narcotic Control Act, s. 

10(1)(c). 

• NO 

- (1) Did taking A DNA sample in this case 

violate the accused’s reasonable expectation 

of privacy? 

• NO 

- (1) By detaining Daley and searching him 

without reasonable grounds or a warrant, did 

the police violate his rights under section 8 


• YES 


• NO 

person asserting the right on a balance of probabilities) 


- (1) No evidence was submitted that indicated taking a DNA sample would have an 

unusual or particular effect on the accused. 

• The impact on his privacy and security of the person interests did not reach beyond 

the general effects associated with the order. 

• A person’s reasonable expectation of privacy is lower after being convicted and 

serving a sentence. 

- Ref. to Murrins (regarding when a DNA sample is constitutionally required) 

- (1) There is a low reasonable expectation of privacy with respect to the contents of 

one’s suitcase in an airport. 

• Furthermore, the fact that the accused opened his suitcase to allow the officers to 

look shows that he consented to the search further lessened the seriousness of the s. 

8 violation. 

- (2) Excluding the evidence would bring the administration of justice into greater 

disrepute than admitting it given the overwhelming evidence that Daley's possession of 

the $16,000 in cash was unlawful. 

• The effect of exclusion would be to restore the proceeds of crime to Daley. 

R. v. Weir 

[2001] A.J. No. 869 

Russell J.A.; 

Berger. and 

Costigan JJ.A. (con). 

* Final Level - 

Leave to appeal 

dismissed at SCC 

Surveillance 

Webtapping case 

-The accused was convicted 

of possession of child 

pornography. 

- During a routine repair of 

Weir's electronic mailbox, his 

ISP discovered attachments 

to an e-mail message that 

appeared to contain child 

pornography. 

- The ISP opened the 

attachments and found that 

they did. 

- The ISP notified police, 

who obtained a search 

warrant for Weir's residence 


- Criminal Code, s. 163.1, 

163.1(1)(a), 163.1(4). 

- (1) Did the search and seizure of the 

computer and the disks, based on 

information given to the police by the ISP, 


• NO 

- Ref. to Collins and Stillman 

- (1) The ISP was not an agent of the state until it forwarded a copy of the message to 

the police at the request of a police officer, after which it DID become an agent of the 

state. 

• The information obtained from the search was not necessary in order to have 

reasonable and probable grounds to obtain the subsequent search warrant: the 

information provided by the ISP employees was sufficient 


- Ref to Kokesch (police must act in good faith; boundaries of a perimeter search of 

home) 

22


(Judge) 




Reasoning 



R. v. D.M.F. 

1999 ABCA 267 

Hetherington J.A.; 

Berger and Smith JJ.A. 

(con). 

*Final Level 


Person - DNA 

Sample 

R. v. Pope 

1998 ABCA 267 

Hetherington J.A; 

Côte, O'Leary JJ.A. 

(con). 

*Final Level 

Surveillance - 

Wiretap 

authorization 

and seized his computer and 

discs. 

- Without consent, the police 

took a DNA sample from a 

cigarette the accused had 

smoked during an interview 

with police. 

- The police also went to the 

accused’s mother’s house, 

entered the accused’s room, 

and took clothes from which 

to take a DNA sample. 


with drug trafficking based 

on intercepted telephone 

communications. 

- He was not named in the 

authorization to intercept 

communications (wiretap), 

even though he was known to 

the police. 

- Charter, ss. 7, 8, 10(b); 

- Criminal Code, s. 715. 

- (1) Did taking the cigarette butts and 

handing them over for DNA analysis without 

consent violate s. 8 of the Charter? 

• NO 

- (2) Did going into the accused’s bedroom 

and getting DNA samples violate s. 8? 

• NO 

- Charter, ss. 8, 24(2). - The trial judge found that the failure to 

name the accused in the wiretap and then use 

the evidence was in violation of s. 8 But the 

Court of Appeal asked: 

- (1) Was this in fact a violation of s. 8? 

• NO 

- (1) The cigarette butts were abandoned and the accused therefore no longer had a 

privacy interest in them (this was similar to the argument made in R v. Kirst) 

- (2) The accused did not have control of his bedroom and he could not regulate access 

to it. He did not have a subjective expectation of privacy in relation to his room (see 

also R v. Kirst) 

- Ref. to Edwards (was there a reasonable expectation of privacy and was that 

reasonable expectation of privacy breached?; totality of circumstances) 

- (1) The accused wasn’t required to participate in the creation or discovery of the 

evidence, which existed independently of the breach. 

• The statements were made voluntarily and independently (the statements would 

have happened regardless of the interception) of their monitoring and recording. 

- (2) For the purpose of assessing trial fairness in regard to section 24(2) of the 

Charter, the element of compulsion required more than passive observation on the part 

of the state. 

• The evidence of the intercepted communications was non-conscriptive. 

- Ref. to Stillman and Collins 

BC COURT OF APPEAL 

R. v. Wucherer 

2005 BCCA 390 

Thackray J.A.; 

Mackenzie and Low 

JJ.A. (con) 

*Final Level 


Person 

(Info/identity) 

R. v. Smith 

[2005] B.C.J. No. 

-The accused was convicted 

by a jury of manslaughter . 

- The trial judge refused the 

disclosure of records from the 

Criminal Injuries 

Compensation Board, and of 

medical records related to the 

victim's wife and daughter 


of possession of child 

- Charter, s. 11(f); 



163.1(3), 487.1 (1), 

- (1) Did the accused have a right to view the 

records of his wife and his children? 

• NO 

- (1) Did the search based on erroneous 

information given by the police violate s. 8 of 

- (1) The judge did not err in using her discretion to refuse the disclosure of medical 

records or records related to the Criminal Injuries Compensation Board in respect of 

the victim's family. 

• There was no suggestion that the judge failed to recognize the correct principles 

applicable to the issue of disclosure. 

• The finding that the records were not relevant and were not necessary to make 

full answer and defence was correct. 

- Ref. to O’Connor 

- (1) The search was a serious invasion of privacy, as the warrant was not properly 

obtained. 

23


(Judge) 




Reasoning 



1342 

Ryan J.A.; Esson and 

MacKenzie JJ.A. (con) 

* Final Level 

Surveillance (webtap) 


pornography for the purpose 

of distribution and sale. 

- There were erroneous 

paragraphs in the information 

presented to obtain the search 

warrant for the accused’s 

computer hardware. 

- As a result, the trial judge 

had no choice but to quash 

the warrant, as the essential 

evidence had been excised 

from the material. 

487.1(4)(a); 

- Charter, ss. 8, 24(2). 

the Charter? 

• YES 


• NO 

- The warrant was also faulty because of an amendment made by the judicial justice 

of the peace 

- The offence of possessing child pornography for the purpose of distribution or sale 

was very serious because of the personal and societal harm flowing from the sexual 

exploitation of children. 

- (2) Good faith connotes an honest and reasonably held belief. 

- If a belief is honest, but not reasonably held, it cannot be in good faith, but it does 

not follow that it is necessarily in bad faith. 

- Ref. to Kokosch (police must act in good faith; good faith" is a state of mind, an 

honestly held belief”; to be held in good faith a belief must be reasonably based. 

- - Ref. to Collins 

Young et al v. 

Saanich Police 

Department et al 

2004 BCCA 224 

Huddart J.A; 

Finch and Lowery 

JJ.A. (con). 

*Final Level (Leave 

to appeal dismissed 

by SCC) 

Home Search – 

perimeter search 

- The petitioners resided in a 

housing complex where they 

were found by the police to 

be growing and using 

marijuana. 

- The police had interviewed 

other tenants and obtained 

information. 

- The landlord evicted the 

petitioners because of 

complaints from other 

tenants. 

- The petitioners challenged 

the eviction on the basis of s. 

- Charter s. 7, s. 8, 15 s. 

24(1), s. 32; 

- Constitutional Question 

Act, R.S.B.C. 1996, c. 68; 


Substances Act, S.C. 1996, 

c. 19, s. 4(1), s. 7 , s. 56; 

- Residential Tenancy Act, 

R.S.B.C. 1996, c. 406, s. 

36(1). 

- (1) Did the police violate the petitioners’ s. 8 

rights? 

• NO 

- (1) The police did not undertake a search and seizure but rather asked the tenant 

questions to which the tenants gave answers freely. 

- The police didn’t obtain material evidence, they only obtained information from 

the tenants. 

- The analysis is similar to that in R v. Lunn. 

- Ref. to Evans 

24


(Judge) 




Reasoning 



(warrantless search) 


B.G. et al v. 

H.M.T.Q. in Right of 

B.C. 

2004 BCCA 345 

Finch C.J.B.C; 

MacKenzie and Lowry 

JJ.A. (con). 

*Final Level 


Person 


- The plaintiff, BG, appealed 

the variation of a publication 

ban. 

- BG had been an inmate at a 

school for boys and a number 

of former inmates sued the 

school for sexual and 

physical assault. 

- An order was made banning 

publication of the names of 

the plaintiffs or of 

information that would 

identify them. 

- Juvenile Delinquents Act; 

- Young Offenders Act; 

Youth Criminal Justice 

Act. 

- (1) Did the parties in this case have a 

reasonable expectation of privacy with respect 

to the information published under the partial 

publication ban. 

• YES 

- (1) There was no language in the first publication ban to indicate that it was not 

permanent. 

• If the ban was to end, that should only happen after a full reconsideration of the 

reasons for imposing it in the first place. 

R. v. Shoker 

2004 BCCA 643 

Levine J.A.; Finch 

J.A. (con); Hall J.A. 

(dis) 

*Final Level (Leave 

to Appeal granted at 

SCC) 


Person 

(Urine, Blood, and 

breathalyser info) 

R. v. Greaves 

2004 BCCA 484 

Lowry J.A.; Finch and 

MacKenzie JJ.A. (con) 

* Final Level (leave 

to appeal refused by 

SCC) 


with sexual assault and break 

and entering. 

- Upon probationary release 

he was told he had to give a 

urine and blood sample and 

breathalyser test upon 

demand/request of a peace 

officer or probation officer. 

- The accused didn’t consent 

to giving these bodily 

samples. 

- During an investigative 

detention, a number of items 

were seized from a suspect, 

including a cigarette box 

containing I.D. and a cell 

phone with an address book. 



487.056(3) s. 487.06(1)(c) 

, s. 487.07(3) , s. 718 , s. 

718.1 , s.732.1(3) s. 

732.1(3)(a)-732.1(3)(h) s. 

732.1(3)(c) s.732.1(3)(g) s. 

732.1(3)(g.1) s. 

732.1(3)(h), s. 737; 

- DNA Identification Act. 

- (1) Were these probation requirements a 

violation of the accused’s reasonable 

expectation of privacy in violation of s. 8? 

• YES 

- Charter s.8, s.9, s.24(2). (1) Were the accused’s s.8 rights violated? 

• YES 

(2) Should the evidence be excluded under 

s.24(2)? 

• NO 

- (1) Since the appellant did not consent, the court found that it was necessary to 

amend the probation order to delete the reference to providing samples from the 

appellant's probation order. 

• With respect to the condition requiring bodily samples, the court held that the 

sentencing judge had jurisdiction to impose such a requirement, but it didn’t meet 

the requirements of s. 8 of the Charter. 



- (1) Following Mann (SCC), during an investigative detention police are permitted 

to ‘pat-down’ a person for the purposes of protecting themselves or others. 

• The items seized were subject to a reasonable expectation of privacy (items 

containing personal information). [Note that there is no obligation to identify 

oneself]. 

- (2) Test for exclusion: “the impact of the evidence on the fairness of the trial; the 

seriousness of the violation; and the effect the admission of the evidence would have 

25


(Judge) 




Reasoning 



Search of a person – 

body search 

on the reputation of the administration of justice: Collins, at 284-86; R. v. Stillman, 

1997 CanLII 384 (S.C.C.), [1997] 69.” 

• The s.8 violation was serious (searching pockets); however, this was mitigated in 

the case of the cell phone by the existence of reasonable and probable grounds to 

arrest (which would have led to a more extended search incidental to the arrest). 

B. C. Teacher's 

Federation v. School 

District No. 39 

2003 BCCA 100 

Hall J.A.; Low J.A. 

(con); Prowse J.A. 

(dis) 

*Final Level 


Person – Accused’s 

Info 

R. v. Hyatt 

2003 BCCA 27 

Smith J.A.; Low and 

Levine JJ.A. (con). 

* Final Level 


- BCTF challenged the 

School Act on the basis of s. 


- A teacher began to behave 

unusually, displaying an 

inability to interact with other 

staff and taking many sick 

days, which led to student 

complaints. 

- In February 2000, she was 

requested to undergo a 

psychiatric examination 

pursuant to section 92 of the 

School Act and was advised 

that failure to comply could 

result in her termination. 

- She refused to be assessed 

and was terminated. 

- The appellants and their 

accomplice were charged 

with armed robbery. 

- The accomplice was the one 

who testified, resulting in 

convictions for the 

appellants. 

- It was acknowledged that 

the accomplice's Charter 

rights to counsel and against 

unreasonable search and 

seizure had been breached. 

- Therefore,the appellants 

argued that accomplice's 

- Charter, ss. 1, 2(b), 6, 

6(2)(b), 7, 8, 9, 10, 11, 12, 

13, 14, 24(2); 

- Criminal Code, ss. 94(2), 

193, 195.1(1)(c), 254(3); 

School Act, s.92. 


11(d), 24(1), 24(2); 

- Criminal Code, ss. 91(2), 

344(a), 351(2). 

- (1) Was requiring the teacher to undergo 

assessment a violation of s. 7 (security of the 

person) or s. 8 of the Charter? 

• NO 

- There was no standing for the appellants to 

bring an appeal. 

- It was the accomplice who gave the 

testimony. 

- (1) Despite there being no standing, was 

there still a breach of s. 8? 

• NO 


• NO 

- Ref. to Plant (informational privacy). 

- Ref. to Kokesch (police acting in good faith). 

- (1) There was no prejudice to the School District by permitting BCTF to argue 

section 8 of the Charter. 

• Neither section 7 nor 8 of the Charter applied to the circumstances of this case. 

• The request to undergo a psychiatric examination did not fall within the 

parameters of section 8 of the Charter as it was not a search or seizure. 

- Ref to Kokesch (boundaries for perimeter search of residence; either seizure, 

surveillance or search). 

- Ref. to Hunter (purpose of s. 8; s. 8 protects a reasonable expectation of privacy). 

- (1) It was the accomplice's car and statement that were at issue. 

• The trial judge did not err in determining that police had articulable cause to 

search the vehicle. 

• Neither the accomplice's testimony nor the physical evidence could have been 

excluded under the Charter (need causal and temporal link to be excluded). 

- (2) Although there was residual discretion to exclude accomplice’s evidence if 

required for trial fairness, the accused had not demonstrated a causal link. 

• Evidence will be excluded under s. 24(2) only where there exists a sufficiently 

strong link between the Charter breach and the discovery of the evidence and 

where causal and temporal connections are factors in the analysis. 

26


(Judge) 




Reasoning 



R. v. Benham 

[2003] B.C.J. No. 

1315 

Low J.A.; Donald and 

Newbury JJ.A. (con). 

*Final Level 

(Property search- 

Home 

Hydro/Electrical 

Searches) – 

testimony and evidence 

obtained from the search 

were not admissible against 

them. 

- After electrical transformer 

malfunctions, Hydro checked 

the wires to Benham's home 

and found that he was using 

an excessive amount of 

electricity. 

- It inspected Benham's 

property and found that he 

had installed a bypass. 

- On the basis of this 

investigation, police 

discovered that Benham 

operated a marijuana 

cultivation operation. 


- Constitutional Question 

Act; 

- Utilities Commission Act, 

s. 125. 

- (1) Did Hydro's entry into Benham’s 

property constitute an unreasonable search 

and seizure? 

• NO 

- (2) Was the regulation that gave Hydro 

access to its meters and other equipment on 

customer premises unconstitutional? 

• NO 


• NO 

- Ref. to Edwards (totality of circumstances; rights are personal and cannot be 

asserted by anyone except the person whose rights are violated). 

- (1) The relationship between Hydro and its customers was contractual and the 

terms of the contract were dictated by statute and regulation. 

- (2) Hydro's equipment had to be located on customer premises and it would be 

commercially unrealistic for Hydro to be denied access to its own equipment. 

• There was also a low expectation of privacy related to Hydro personnel being on 

customer property. 

- (3) The evidence was admissible and should not be excluded pursuant to s. 24(2). 

• There was no breach of s. 8 and therefore no s. 24 analysis was undertaken. 

- Ref to Kokesch (boundaries of a perimeter search for home). 

- Ref to Hunter (purpose of s. 8; protection mandated by s. 8). 

R. v. Dunbar, 

Pollard, Leiding and 

Kravit 

2003 BCCA 667 

Finch, Braidwood, 

and Lowry JJ.A. 

* Final Level 

Identity – Records 

- The court ordered the 

production of records held by 

the Law Society of B.C. to 

substantiate a claim of 

incompetent counsel that 

formed the basis of an appeal 

from four persons convicted 

of offences . 

- Note: the afterword in the 

case admonished the lawyer 

representing the appellants 

pointing out the irony 

concerning incompetence. 

- Legal Profession Act, 

S.B.C. 1998, c.9, s.87(5) 

(statutory privilege). 

(1) Is there a reasonable expectation of 

privacy in the practice records of a lawyer? 

• YES. There is a reasonable expectation of 

privacy on the part both of the lawyer and 

of the Law Society. 

(2) Should the records be produced? 

• NO 

(1) Law Society records have statutory privilege. 

• They are not subject to the Crown’s obligation to disclose, nor are they subject 

to solicitor-client privilege (where waiver of privilege renders documents 

compellable). 

• If records are not subject to Criminal Code provisions related to non-production 

of records for certain offences (e.g. sexual history of complainant) then the test 

in O’Connor applies “to determine when the privacy interest in confidential 

third party records should yield to an accused’s right to make full answer and 

defence.” 

• A number of different types of confidential third-party records will be subject to 

this test – including those based on statutory privilege. 

(2) O’Connor is a two part test: 

• Threshold: Are the records “likely to be relevant”? (i.e. is there a reasonable 

possibility that the information is logically probative to an issue at trial or the 

competence of a witness to testify?) 

• This should not be an onerous burden. It is intended to “prevent the defence 

from engaging in “speculative, fanciful, disruptive, unmeritorious, obstructive 

and time-consuming” requests for production. 

• –Balancing: Balance accused’s right to make full answer and defence against 

the privacy interests engaged, weighing salutary and deleterious effects of 

27


(Judge) 




Reasoning 



production order. One factor to take into account is the nature and extent of a 

reasonable expectation of privacy in the record. 

- In this case the evidence did not disclose that the records would likely be relevant, 

therefore the analysis did not proceed to the second step. 

R. v. Truong 

2002 BCCA 315 

Donald J.A.; Prowse 

and Newbury JJ.A. 

(con) 

* Final Level 

Identity/search of 

person - personal 

property (luggage) 

- Marijuana was found when 

the accused’s luggage was 

removed from a conveyor 

belt in a secure baggage area 

by police. 

- The police seized Truong's 

bag, moving it a few feet, and 

allowed a police dog to sniff 

the bag for controlled 

substances. 


24(2). 

- (1) Did the removal of the bag constitute an 

unreasonable seizure and violate the accused 

s. 8 rights? 

• YES 


• NO 

- (1) The police took control of Truong's bag away from the airline baggage 

handlers. 

• The police acted on suspicion and had no lawful authority to seize Truong's bag 

by removing it from the conveyor and taking it out of the control of the airline. 

• Truong had a reasonable expectation of privacy that his bag would not be 

handled by anyone other than airline and security personnel. 

• Although the police should not be permitted to carry out such seizures arbitrarily, 

in this case the police had cause to seize the bag. Moving the bag to facilitate a 

sniff search is a justifiable intrusion under the circumstances. 

- (2) The breach was so minor that it should not result in the exclusion of the 

evidence obtained 

• Although the investigatory purpose of the seizure can be considered, the legality 

of the sniff search and the opening of the bag are not questioned. 

• Therefore, the moving a bag a few feet to enable a police dog to sniff it stands at 

the very low end of seriousness. 

• The evidence at trial was that the dog in this case was sniffing bags on the carts 

before they were taken away to the aircraft. 

• The location of the bag when it was sniffed and how it got there were 

unimportant in the opinion of the court. 

R. v. Parchment 

2002 BCCA 252 

Braidwood J.A.; 

Prowse and Newbury 

JJ.A. (con) . 

* Final Level 


R. v. Ku 

[2002] B.C.J. No. 

2316 

- The accused was pulled 

over by police for impaired 

driving 

- He was found to have 

possession of drugs. 

- A 14-year-old passenger in 

the car also had possession of 

drugs which were hidden in 

her clothes. 

- Upon his conviction on 

several counts of assault, the 

accused was told by the trial 



Substances Act, s. 5(2). 

- Charter, ss. 1, 7, 8, 11(d), 

11(i), 24(1); 



expectation of privacy in the drugs that were 

hidden in the clothing of a 14-year-old 

passenger in his car? 

• NO 

- (1) Did ordering the blood sample violate s. 

8? 

- Ref. to Edwards (totality of circumstances). 


- Ref. to Kokesch (police must act in good faith). 

- (1) The girl holding the drugs was a minor – it would violate human dignity if the 

accused had a reasonable expectation of privacy in her and her possessions. 

• The accused had already been removed at the time of the 14-year-old’s search, 

and both possession and control of the drugs had been surrendered to the 

girl The accused had no standing to challenge the search of the girl. 

- Ref. to Edwards (totality of circumstances test). 

- (1) As a convicted offender, Ku had a reduced reasonable expectation of privacy 

and the search warrant standard did not apply to either fingerprinting or blood 

samples. 

28


(Judge) 




Reasoning 



Donald J.A.; Finch 

and Rowles JJ.A. 

(con). 

*Final Level 


Person - DNA 

Sample 

Festing v. Canada 


2001 BCCA 612 

Prowse J.A.; Donald 

J.A. (con); Newbury 

J.A. (dis). 


to appeal refused by 

SCC) 


Law office 

judge that he had to provide a 

blood sample for the DNA 

data bank. 

- Police conducted a 

warranted search of a 

Kelowna law office. 

-Documents were seized and 

given to the sheriff pending 

an application under s. 488.1 

and 487 of the Criminal 

Code, which refer to 

solicitor-client privilege. 

-The constitutionality of the 

Criminal Code provisions 

was challenged. 

487.04, 487.051, 487.052, 

487.052(1), 487.06(1); 


ss. 3, 4; 


Criminals Act, s. 2. 

- Charter, s.8; 

-Criminal Code, ss. 488.1, 

487. 

• NO 

(1) Does s. 488.1 of the Criminal Code 

infringe s. 8 of the Charter? 

• YES (and it is not saved under s.1) 

(2) What is the appropriate remedy? 

• Strike down the section 

(3) Does s.487 infringe s. 8 of the Charter to 

the extent that it applies to law offices? 

• YES 

• The DNA sampling techniques were minimally invasive and could not reveal 

anything more about Ku than his identity. 

• The offences were very serious and the level of violence over a trivial matter was 

of grave concern. It was in the best interests of the administration of justice that 

the DNA order be made 

- Ref. to Hunter (the seizure must be reasonable; the minimum standard is 

reasonable and probable grounds). 

- Ref. to Briggs (the state's interest in the DNA bank is not simply law enforcement, 

but to deter potential repeat offenders, promote the safety of the community, detect 

when a serial offender is at work, assist in solving cold crimes, streamline 

investigations, and assist the innocent by early exclusion from investigative 

suspicion or in exonerating the wrongfully convicted). Murrin, Dyment cited. 

- (1) The section is a prima facie violation of a client’s reasonable expectation of 

privacy for the following reasons (1-4): 

“1. the absence of any notice provisions for clients, and the prospect that 

privilege can therefore be effectively lost or waived without notice to the 

client by operation of s. 488.1(6); 

2. the above problem is exacerbated by the strict time limits contained 

in s. 488.1(3), particularly in light of the practical difficulties of notifying 

clients when multiple files of a lawyer are searched and seized. In the 

result, privileged documents may ‘fall through the cracks’; 

3. privilege may be potentially lost to the prosecuting authority by 

virtue of s. 488.1(4)(b); 

4. the requirement to name clients under s. 488.1(2) may result in a loss 

of privilege.” (para. 17) 

(4) What is the appropriate remedy? 

• Read into the section an exclusion for law 

offices (warrant cannot be issued for law 

offices). 

- (2) Rewording the section to be constitutionally sound is a job properly left to 

Parliament. 

- (3) and (4) S.487 infringes s.8 to the extent that it authorizes the search of law 

offices without providing adequate safeguards to protect to the greatest degree 

possible solicitor-client privilege in information. A clear and uniform standard is 

required (and was attempted in the impuned s.488.1). 

- Note: “The rapid growth and use of technology in law firms has changed the very nature 

of a "document" such that computer hard drives are now being seized which may contain 

documents relating to hundreds of clients, most of whom have no connection to the 

"target" of the search. The interdisciplinary nature of modern law firms has also raised the 

spectre of seizures from such firms resulting in the potential breach of confidentiality with 

respect to clients of accountants or other professionals associated with the law firm” (para. 

37) 

29


(Judge) 




Reasoning 



R. v. Khuc, Bui, 

Pham and Tran 

2000 BCCA 20 

McEachern C.J.B.C.; 

Finch and Ryan JJ.A. 

(con). 

*Final Level 

Property search- 

Home – not owner 

R. v. Novak 

2000 BCCA 257 


Cumming and Finch 

JJ.A. (con). 

*Final Level 


Home 

(Hydro/Electrical 

Searches) – 

R. v. Bohn 

2000 BCCA 239 

Ryan J.A.; Hollinrake 

and Huddart JJ.A. 

- An undercover cop 

purchased drugs on several 

occasions. 

- The seller’s car was seen to 

enter and exit a particular 

address. 

- A search warrant was 

granted for that address. 

- The police seized a number 

of items, including children's 

clothes, drug paraphernalia, 

cash, documents, and 722 

grams of cocaine. 

- The accused claimed that 

they had a reasonable 

expectation of privacy with 

respect to the house because 

they were babysitting. 

- Novak leased a unit in a 

warehouse under a false 

identity. 

- Hydro records were in a 

third person's name. 

- The police suspected a drug 

cultivating operation and 

obtained hydro records for 

the unit showing hydro 

consumption for the unit was 

higher than for other units. 

- The unit also emitted a 

strong smell of marijuana. 

- Police then got a search 

warrant and uncovered drugs. 

- The police received a tip 

that the accused had a hydro 

bypass and a marijuana grow 

operation in his residence. 

- After getting a warrant to 


186(1)(b)(iii). 



24(2); 

- Criminal Code, s. 40; 

- Criminal Code, s. 29(1); 

- Narcotic Control Act. 

- (1)Was there a reasonable expectation of 

privacy with respect to the house searched by 

the police? 

• NO 

- (1) Did the way the search warrants were 

obtained violate s. 8? 

• NO 


• NO 

- (1) Did failing to produce a copy of the 

warrant (and nevertheless searching the 

accused’s home) violate s. 8 of the Charter? 

• YES 

- (1) The accused did not assert possession or control of the property, they did not 

claim ownership, and there was no evidence of their historical use of the premises. 

• That they were babysitting was only an assertion unsupported by any evidence. 

• There was no evidence of their ability to regulate access. 

- Ref. to Edwards (facts compared and distinguished; totality of circumstances). 

- (1) There was no evidence that Novak had any expectation of privacy with respect 

to the hydro records seized or with respect to the premises. 

- He didn’t own the building, didn’t live there, there was no evidence he was the 

lessee or responsible for the hydro. 

- (2) There was no violation of s. 8 because the accused had no reasonable 

expectation of privacy with respect to the premises he didn’t own or occupy. 

Therefore – the evidence should not be excluded under s. 24(2). 

- Ref. to Plant (core biographical info; personal and intimate details of lifestyle) 

- Ref to Edwards (Two distinct questions must be answered in any s. 8 challenge: 

whether the accused had a reasonable expectation of privacy and whether the search 

was an unreasonable intrusion on that right to privacy). 

- (1) Failure to produce the warrant on request without good reason was a significant 

breach. 

• It deprived the accused of seeing the legal authority on which the invasion of his 

privacy was based. 

• The breach was serious because, in conjunction with the privacy breach, it 

30


(Judge) 




Reasoning 



(con). 

*Final Level 

Property - Home 

(Hydro by-pass) 

search his house, police were 

unable to show the accused 

an actual copy of the warrant. 


• YES 

demonstrated the inattention of the police to the accused's rights. 

- (2) Admission of the evidence obtained by this kind of unwarranted search could 

bring the administration of justice into disrepute if the courts allowed this kind of 

police conduct, and it was therefore excluded. 

R. v. Mooring 

[1999] B.C.J. No. 

1557 

Prowse J.A.; 

McEachern and Goldie 

JJ.A. (con). 

* Final Level 

Surveillance 

Wiretap/ 


R. v. Vu 

1999 BCCA 182, 


MacFarlane and 

Goldie JJ.A. (con). 

*Final Level 


Person 

(Photograph/ 

identity) – this is not 

the case we have on 

computer 


of murder based on evidence 

from unreliable witness, who 

gave evidence of a 

conversation he had with 

Mooring in which Mooring 

allegedly confessed to 

shooting someone. 

- The convictions were also 

partly based on Mooring's 

intercepted communications, 

but Mooring was not named 

in the wiretap authorization. 

- An undercover officer 

purchased cocaine from the 

accused at a residential 

dwelling. 

- Two officers then went to 

the premises without a 

warrant and questioned the 

accused about an assault. 

- The officers noted that the 

accused’s face and clothing 

matched the description 

provided by the undercover 

officer. 

- The accused was arrested 

and photographed. 

- The undercover officer 

testified that she had not used 

the photographs to refresh her 

memory of the accused. 


185(1)(e), 186(4)(a), 

186(4)(b), 186(4)(c), 

686(1)(b)(iii); 



- (1) Did the wiretap recording of the accused 

violate s. 8? 

• YES 


• YES 

- (1) Was going up to the accused door, 

knocking, then taking a physical description 

of the accused a violation of his reasonable 

expectation of privacy per s. 8 of the Charter? 

• NO 


• NO 

- Ref. to Hunter (s. 8 protects people and not things or places; people are entitled to 

a reasonable expectation of privacy). 

- (1) The accused was acquitted of the murder charges. 

• Although it authorized the interception of the accomplice’s communications, the 

wiretap warrant did not authorize an interception in respect of Mooring and 

therefore it violated his reasonable expectation of privacy. 

- (2) The quality of the wiretap evidence was so poor, incomplete and 

incomprehensible, that it should not have been admitted. 

• The witness was unreliable, but the information given was not so devoid of 

reliable content as to be inadmissible on the grounds that it would bring the 

justice administration into disrepute. 

- Ref. to Ferris 

- (1) The conduct of the officers was reasonable, as they had reasonable grounds to 

believe that an offence had been committed. 

• Walking to the door and knocking on it constituted a minimal interference with 

the privacy interest of the occupant. 

• Looking at people and taking a physical description of those who answer the 

door are non-intrusive techniques for determining the characteristics of the 

accused. 

- (2) Looking at the person who answers the door is a non-intrusive technique and 

was not characterized as conscriptive. 

• The evidence should be admitted in any event under section 24(2) of the Charter. 

• Rejecting this evidence on the basis of either trespass or "using the body" of the 

accused for identification by simply looking at him in a non-invasive way would 

clearly bring the administration of justice into serious disrepute. 


protects a person’s reasonable expectation of privacy) 

- Ref. to Kokesch (can’t obtain evidence through a Charter breach; police must act 

in good faith in conducting searches). 

31


(Judge) 




Reasoning 



Patterson v. British 

Columbia (Attorney 

General) 

1999 BCCA 645 

Holllinrake J.A.; 

Southin J.A. (con); 

Ryan J.A. (dis). 

*Final Level 


Person; Records 

R. v. Sharpe 

1999 BCCA 416 

Southin J.A.; Rowles 

J.A. (con); McEachern 

J.A. (dis). 

* Reversed SCC 

(6:3 upheld the law 

but read down the 

section) 

Property search – 

Home (perimeter 

search) 

- As a condition of receiving 

income assistance, it is the 

practice of the respondent 

government to require people 

to provide the Ministry of 

Social Development and 

Economic Security with 

information regarding their 

identity, address, assets, 

sources and amounts of 

income, and cost of shelter. 

- Patterson and the 

Marginalized Workers Action 

League appeal a decision 

dismissing their challenge of 

the requirement. 


warranted search of the 

accused’s home and seized a 

collection of materials 

alleged to be pornographic. 

- B.C. Benefits (Income 

Assistance) Act, ss. 3, 

8(1)(a), 8(1)(b), 8(1)(c), 

8(3)(a), 8(3)(b), 19(2) (a), 

19(2)(b), 24(2)(e), 

24(2)(k); 

- Charter, ss. 1, 7, 8; 

- Income Assistance 

Regulation, B.C. 

Regulation 75/97, ss. 1, 

2(1)(a)(ii). 

- Charter s. 2(b), s.8, s.1; 

- Criminal Code, 

s.163.1(4). 

- (1) Does requiring this personal information 

as a condition of receiving income assistance 


• NO 

- (1) Do the provisions of the Criminal Code 

prohibiting the private possession of 

expressive materials (child pornography) 

violate the Charter? 

• YES 

(1) Mandatory consent was necessarily incidental to achieving the purpose of 

ascertaining eligibility for benefits. 

• Limitations on the form of consent ensured that no Charter right was breached, as 

the consent was only to verify information. Outside agencies could release 

information only if it was relevant to eligibility for assistance. 

• The information was said to be contained and did not go beyond the agency 

• Therefore there was no breach of s. 8. 

- Ref. to Plant (core biographical information). 


- The section infringes s.2(b) and cannot be saved under s.1 because it is overly 

broad and fails the proportionality test. 

- Southin: A significant value underlying the Charter is a reasonable expectation of 

privacy and case law concerning freedom of expression reflects the Charter’s 

concern about privacy (particularly in the home or in private conversation). 

Detrimental effects to freedom of expression and the right to privacy substantially 

outweigh salutary effects. 

- Rowles: Concurs that the appeal should be dismissed and speaks in general terms 

about the importance and value of privacy enshrined in the Charter as a backdrop to 

determining whether or not the impugned section is minimally impairing under s.1. 

- McEachern (dis): S.8 is a specific guarantee against unreasonable search and 

seizure. Searches and seizures conducted under warrant could only be at issue if 

conducted under an invalid law. Privacy is an important factor when considering the 

overbreadth of legislation (particularly in the home and in private papers). 

R. v. Connors 

1998 CanLII 12468 

(BC C.A.) 

Cummings J.A.; 

Donald and Newbury 

JJ.A. (con). 

* Final Level 

- Prior to laying a drunkdriving 

charge, police 

fingerprinted the accused 

while in custody. 

- The accused was 

subsequently convicted. 

- His fingerprints were later 

used in another case to 

- Charter, s.8, 9 and 24(2); 


Criminals Act (ICA); 

Criminal Code ss. 501 and 

509. 

(1) Did fingerprinting the accused before 

charging him violate s.8? 

• NO 

(2) Should the evidence be excluded under 

24(2)? 

(1) The taking of fingerprints is, at common law, an incident to lawful arrest and not 

displaced by ICA (Cummings). 

• The accused consented to having fingerprints taken and there was therefore no 

violation of s.8. Donald disagrees with Cumming’s statement of common law 

power and notes the implications for informational privacy. 

• Newbury generally concurs with Cummings except with respect to the status of 

the ICA, which has displaced common law. 

32


(Judge) 




Reasoning 



Identity – 

Fingerprints 

identify accused in 

connection with a robbery. 

• NO 

- (2) Regardless of the Charter breach, evidence could have been obtained in other 

ways. 

- Any Charter breach here was extremely technical, and police acted in good faith 

(Cummings and Newbury). 

- Note also the discussion of the retention of fingerprints and the legitimacy of 

maintaining a database of fingerprints. 

R. v. B. (M.R.) 

[1998] B.C.J. No. 

1197 


McFarlane and 

Hollinrake JJ.A. (con). 

*Final Level 


Person 

(Blood Sample) 

R. v. Vu 

[1998] B.C.J. No. 

2694 

Hall J.A.; Southin and 

Lambert JJ.A. (con). 

* Final Level 

-The appellant was the driver 

in an accident in which the 

front seat passenger was not 

wearing a seatbelt and was 

killed and the appellant and 

two other passengers were 

injured. 

- The ambulance attendant 

asked if the appellant had 

consumed alcohol. She stated 

she had had six coolers and 

some rum. 

- The investigating officer 

spoke to the attendant who 

disclosed the details of his 

conversation with the 

appellant. 

- A physician took a blood 

sample from the appellant for 

the purposes of diagnosis and 

treatment. 

- Police obtained a search 

warrant to seize the blood. 

- The police suspected the 

appellant of involvement with 

illegal weapons. 

- They arranged for someone 

to phone his house and 

inform him that the police 

were coming with a search 

warrant to search the 



253(b), 255(2), 255(3). 

- (1) Did the ambulance attendant violate the 

appellant’s rights when he conveyed 

information to the police regarding the 

amount that she drank? 

• NO 

- Charter, ss. 8. - (1) Was the way in which the police 

obtained the evidence (calling and getting the 

accused out of the house) a violation of s. 8? 

• NO 

- Ref. to Hunter (taking bodily substances without warrant is presumed to be 

unreasonable). 

- (1) The information provided to the police by the ambulance attendant was not the 

private, intimate information protected by s. 8 of the Charter. 

• The information was volunteered in response to the attendant's inquiries. 

• Once the officer had information about alcohol consumption, he was under a duty 

to investigate further. 

• The attendant was not reporting to the police but simply fulfilling the 

requirements of his job. 


- Ref. to Hunter (s. 8 protects a person’s reasonable expectation of privacy). 

- (1) When the appellant came out of his house with a bag and entered his vehicle, 

the totality of the circumstances afforded a proper basis for a reasonable and 

probable belief that he was engaged in criminal activity. 

• At that point, the police had lawful grounds to arrest him. The search of the truck 

was lawful. 

- Ref. to facts of Edwards. 

- Ref. to Wong. 

33


(Judge) 




Reasoning 



Surveillance 

(Wiretap) 

R. v. Cheung 

[1997] B.C.J. No. 

2282 


Newbury and Hall 

JJ.A. (con). 

* Final Level (Leave 


by SCC) 

Surveillance 

Wiretap 

R. v. Nenadic 

1997 CanLII 3802 

(BC C.A.) 

premises (even though this 

wasn’t true). 

- This caused the appellant to 

leave his residence with a bag 

of possessions that turned out 

to include drugs, jewellery 

and weapons. 

- As he was leaving, the 

police arrested the appellant, 

then searched his truck 

contemporaneously with the 

arrest. 

- A shipment of heroin was 

seized when the courier, 

Copon, was arrested upon her 

arrival in Vancouver. 

- The accused's involvement 

in an agreement to import 

these drugs was established 

through a tapped telephone 

conversation between him 

and a third party, Tam, 

following Copon's arrest. 

- Police entered the accused’s 

home before a warrant had 

been issued. 



- (1) Did using the wiretap information to 

arrest the accused violate s. 8 of the Charter? 

• NO 


• NO 

- Charter s.8 and s.24(2). - (1) Was the search unreasonable? 

• YES 

- (1) At the time of the application for the wiretap, reasonable grounds existed to 

believe that the accused, Tam, and others were on the verge of importing a kilogram 

of cocaine into Canada. 

• The accused's privacy rights were not infringed by interceptions made under one 

authorization. 

- (2) Section 24 of the Charter is a remedial section which may only be relied upon 

by one whose substantive individual rights have been violated. 

• There was no violation of s. 8 and therefore the wiretap information should not 

be excluded pursuant to s. 24(2). 


- Ref. to Hunter (s. 8 is a personal right that protects people - not places). 

(1) R. v. Silveira (S.C.C.) (1995), a case concerning searches under the Narcotics 

Control Act, applies to searches under the Criminal Code, and applying it to the 

entry in this case renders the entry contrary to s.8. 

Ryan J.A.; Rowles 

and Proudfoot JJ.A. 

(con). 

* Final Level 


Home (warrantless 

search) 

Brazier v. Vancouver 

(City of) 

[1997] B.C.J. No. 

- Brazier parked his vehicle 

in a no parking zone contrary 

to a city bylaw. 

(2) Should the evidence be excluded? 

• NO 

- Charter, ss. 1, 8. - (1) Did the bylaw violate the accused’s s. 8 

rights? 

(2) The trial judge’s finding that admitting the evidence would not bring the 

administration of justice into disrepute is reasonable. 

• The police acted in good faith, discovered real evidence in exigent 

circumstances, and the trial would not be rendered unfair by admitting the 

evidence. 

- The City had a valid purpose in controlling illegal parking. 

-Even if taking the car constituted a seizure under s. 8 of the Charter, it was 

34


(Judge) 




Reasoning 



2636 

Goldie J.A.; Rowles 

and Huddart JJ.A. 

(con). 

* Final Level 


R. v. Piche 

[1996] B.C.J. No. 

2600 

Gibbs J.A.; 

McEachern and Legg 

JJ.A. (con). 

*Final Level 


Person (body search) 

R. v. Hutchings 

[1996] B.C.J. No. 

3060 



Prowse JJ.A. (con). 

*Final Level (leave to 

appeal dismissed at 

SCC) 


Home 

(Hydro/Electrical/ 

- His vehicle was ticketed and 

towed pursuant to the 

Impounding Bylaw, and he 

had to pay $17 to retrieve it. 

-Brazier claims that s. 3(a) of 

the Impounding Bylaw 

violated his rights under 

section 8 of the Charter. 


with a robbery committed by 

a masked man. 

-After the accused was 

caught by police they found a 

bag with lots of money in his 

pants. 

- The accused couldn’t say 

where the money had come 

from or where he lived. 

- He was then taken to the 

police station and detained. 

- While detained, the police 

investigated the money found 

on the accused and 

discovered the bills were 

marked as coming from a 

bank. 

- Police set up surveillance of 

a property, but saw nothing 

indicating the barn was used 

for a large cannabis 

cultivation operation, as 

alleged by an informant. 

- The RCMP contacted BC 

Tel, which verified that the 

phone was registered to 

Hutchings' sister. 

- Hydro records showed the 

barn's electrical consumption 

was low, which suggested 

that electrical power was 

• NO 

- Charter, ss. 7, 8, 9. - (1) Was the accused’s s. 8 Charter right 

violated in that the officer had no reasonable 

or probable grounds to search and seize the 

money and to make further inquiries 

regarding its origin? 

- Charter, ss. 8, 10(b); 


686(1)(b)(iii); 

- Narcotic Control Act. 

• NO 


• NO 

- (1) Was there a violation of s. 8 of the 

Charter with respect to the hydro bill, 

telephone information or the FLIR? 

• NO 

authorized by law and the law is reasonable in light of its purpose and need. 

- Ref. to Hunter (s. 8 protects reasonable expectation of privacy). 

- (1) The appellant had little or no expectation of privacy in respect of the money 

given that it had been in the custody of the police since his initial lawful arrest. 

- (2) However, even if the search and seizure violated section 8 of the Charter, the 

evidence should be admitted becausethe admission of the evidence would not bring 

the administration of justice into disrepute. 

- (1) The telephone number did not disclose Hutchings’ personal “core” information 

(as discussed in Plant), and it did not qualify as information for which he had a 

reasonable expectation of privacy. 

• Hutchings' reasonable expectation of privacy with respect to the property was 

lessened by the hydro bills which gave hydro a right of entry (Benham case). 

• Hutchings had no reasonable expectation of privacy regarding the escape of heat 

from the barn (FLIR didn’t reveal any new information and just aided the naked 

eye to see what was being emitted from the house – see also Binnie’s argument in 

Tessling) 

• There was sufficient admissible evidence in the information to justify issuing the 

warrant for the barn. 


- Ref. to Tessling (can’t have reasonable expectation of privacy in the heat 

35


(Judge) 




Reasoning 



FLIR Searches) – 

R. v. Krist 

[1995] B.C.J. No. 

1606 

Rowles J.A.; 

Hollinrake and Prowse 

JJ.A. (con). 

*Final Level 


Home – garbage/ 

perimeter search 

Fieldhouse v. British 

Columbia 

[1995] B.C.J. No. 975 

Gibbs, J.A.; 

Hollinrake and 


*Final Level 


Person 

(Urinalysis Program) 

R. v. Seney 

[1994] B.C.J. No. 

1638 

being diverted. 

- Police also engaged in FLIR 

to take aerial heat 

photographs of the dwelling 

- Hutchings challenged the 

validity of the search warrant 

for the barn. 

- After receiving information 

about a marijuana growing 

operation in the appellant's 

home, police went to the 

appellant's residence where 

they noticed 3 garbage bags 

on the side of the road. 

- They seized 2 bags without 

a warrant and, upon searching 

them, found: four small 

marijuana plants, remnants of 

some paraphernalia indicative 

of a marijuana grow op, and a 

bank account statement in the 

appellant’s name. 

- Police got a search warrant 

based on contents of the bags. 

- Fieldhouse claims that 

section 54(b) of the 

Corrections and Conditional 

Release Act and sections 60 

and 63 of the Corrections and 

Conditional Release 

Regulations are contrary to 

sections 7, 8, 12 and 15 of the 


- The impugned sections 

authorized a mandatory 

urinalysis program. 

- In search of signs of drug 

cultivation, police conducted 

a perimeter search of the 

accused’s home without a 

- Charter, s. 8. - (1) Was the police’s search and seizure of 

the accused’s garbage a violation of s. 8? 


24; 

- Constitution Act, 1982, s. 

52(1); 

- Corrections and 

Conditional Release Act, 

S.C. 1992, c. 20, ss. 2, 3, 4, 

46, 54(b); 


Conditional Release 

Regulations SOR/92-620, 

ss. 60, 63, 66. 



6. 

• NO 

(1) Do these sections contravene s. 8 of the 


• NO 

- (1) Did the unlawful perimeter search violate 

s. 8 of the Charter? 

• YES 

emenating from home). 


- (1) Putting material in the garbage amounts to abandoning it. It signifies that the 

material was no longer something of value or importance to the person disposing of 

it and that there was no reason or need to retain it (similar to DMF case). 

• Once property is abandoned, there is no longer a reasonable expectation of 

privacy in respect of it. 

- Ref. to Hunter (purpose of s. 8; only protects a reasonable expectation of privacy). 

- Ref. to Dyment. 

- (1) Given the nature and extent of drug abuse in prisons, the appellants have no 

greater reasonable expectation of privacy in regard to urinalysis than someone else 

would, in another context, in regard to a frisk search. 

- The impugned regulations promote security and safety. 

- Given the limited privacy interest and minimal intrusion, the law was reasonable, 

as were the provisions to carry it out. 

- Ref. to Kokesch (3 Kokesh tests for determining whether a search is 

reasonable are: 

1.Is the search authorized by law? 

2.Is the law reasonable? 

3.Is the manner of carrying out the search reasonable?) 

- (1) The officer in charge did not have the required subjective belief that there were 

grounds upon which a search warrant could be obtained before the perimeter search 

was undertaken. 

- The officer had acted in good faith. There were reasonable grounds for a warrant 

36


(Judge) 




Reasoning 



Taylor J.A.; 


Hutcheon JJ.A. (con). 

*Final Level 

warrant. 


• NO 

without the need for further evidence obtained in the perimeter search. 

- (2) The evidence should be admitted in pursuant to s. 24(2). 

- The search was conducted in good faith per section 24(2) of the Charter. 


Home 

(Perimeter Searches) 

Pierre v. Pacific Press 

Ltd. 

[1994] 113 D.L.R. 

(4th) 511 

Taylor J.A.; Goldie 

J.A. (con); McEachern 

J.A. (dis) 

*Final Level 


Person 


R. v. Evans 

[1994] 93 C.C.C. (3d) 

130 

Southin J.A.; 

Proudfoot J.A. (con); 

Rowles J.A. (dis). 

*Affirmed SCC 

- Pierre brought an action 

against the defendants 

seeking damages for 

psychological illness suffered 

as a result of the publication 

of interviews with Pierre 

soon after she had witnessed 

a murder and while the 

murderer was still at large. 

- The reports identified Pierre 

by name and showed her 

picture. 

-The action involved an 

application to strike out a jury 

notice, which was dismissed. 

-Pierre appeals that judgment 

on the basis that the trial 

would raise issues of an 

intricate or complex character 

unsuited for a jury. 

- Police went to the accused’s 

home without a warrant, 

knocked on the door and, 

when the door was opened, 

detected the odour of 

marijuana. 

- Police then entered the 

house and conducted a search 

to secure it. They arrested 

- Privacy Act, s. 1.; 

- Charter, ss. 1, 2(b), 7; 

- Negligence Act. 



- Narcotic Control Act, ss. 

3(1), 4(1), 6(1), 10, 12. 

NOTE - In a lot of these cases where there 

was a problem with obtaining a search 

warrant it seems as if the courts are trying to 

find in favour of the state because of the 

consequences on the broader social interest of 

finding for the accused. 

- (1) Were the appellant’s privacy rights 

violated when the reports were published? 

• NO 

- (1) Did the way in which the evidence was 

obtained violate section 8 of the Charter? 

• YES 


• NO 

- Ref. to Kokesch (boundaries of a perimeter search of a home). 

- Ref. to Plant (in order for "good faith" to be established in these cases, for the 

purposes of s. 24(2), the Crown must show that the police not only believed they were 

entitled in law to conduct the warrantless perimeter search, but believed also, on 

reasonable grounds, that an offence under the Narcotic Control Act was being 

committed). 

- (1) To the extent that determining the degree of privacy protection requires a 

weighing of interests, as the appellants say it does, that balancing is no more 

complex or intricate in this context than in that of the negligence claim. 

- Therefore, privacy was discussed along with negligence. 

- (1) It was only by licence of law (as discussed in R v. Grant), not by licence of the 

householder, that the police could enter to enforce the law. 

- Therefore, the “knock on” visit, as an investigative technique (i.e. by smelling the 

air once the door has been opened) would have to be abandoned on as an 

investigative technique would have to be abandoned. 

- (2) Despite there being a s. 8 breach, because a large amount of marijuana was 

discovered (approximately 11 1/4 pounds), consistent with a commercial operation, 

and since trafficking is a serious offence, the Court did not exclude the evidence. 

37


(Judge) 




Reasoning 




Home 

(Knocking Searches) 

R. v. Johnson 

1994 CanLII 2108 

Hinkson, J.A.; 

Lambert and Ryan 

JJ.A. (con). 

*Final Level 


Person (Breathalyser 

Analysis) 

R. v. Concepcion 

[1994] 24 W.C.B. (2d) 

543 

Finch J.A.; Wood and 

Donald JJ.A. (con) . 

*Final Level 


(warrantless search) 

R. v. Copan 

[1994] B.C.J. No. 188 

Hollinrake J.A.; 

Hutcheon and Cummin 

JJ.A. (con). 

* Final Level 


both occupants. 

- The accused was suspected 

of drunk driving while still in 

her driveway and she refused 

to give a breath sample. 

- She argued that police 

violated her reasonable 

expectation of privacy 

because they entered onto her 

property without her 

permission or a warrant. 


warrant based on information 

that "victims" of a robbery 

had identified the accused, 

while in fact only one victim 

had done so. 

- While arresting the accused, 

who was not clothed at the 

time, the police followed him 

to his bedroom so that he 

could get dressed before 

taking him to the station. 


with armed robbery and 

arson. 

- He was found with marked 

money on him, which was 

later used to convict him. 

- The money was placed in an 

envelope and the accused 

argued he had reasonable 

expectation of privacy in the 


- Motor Vehicle Act, s. 

77(1). 

- Charter, ss. 8, 24 (2); 

- Criminal Code, ss. 344. 


expectation of privacy with regard to giving a 

breath sample and did the police violate s. 8? 

• NO 

- (1) Did the mistake in the application for a 

search warrant render the search in violation 

of s. 8 of the Charter? 

• NO 

- (2) Did following the accused into his 

bedroom violate s. 8 of the Charter? 

• NO 


• NO 

- Charter, ss. 8, 24(2). - (1) Did the accused have a reasonable 

expectation of privacy with respect to the 

envelope with the marked bills? 

• NO 


- The exclusion of the evidence would bring the administration of justice into 

disrepute. 

- Ref. to Kokesch (boundaries of a perimeter search of home). 

- Brief ref. to Plant. 

- (1) Having given police her vehicle registration, which included her address, the 

accused had no reasonable expectation of privacy and it was not incumbent on the 

police to resort to alternative means of investigation. 

- The police were acting pursuant to s.77(1) of the Motor Vehicle Act R.S.B.C. 1979 

c.288 in entering the property (believing that the vehicle was involved or could be 

involved in an accident) and therefore had legal authorization to be on her property. 

- Ref. to Kokesch (boundaries of a perimeter search of residence). 

- (1) The search warrant was obtained in good faith. 

- Permitting an arrested person to be comfortably and appropriately clothed before 

taking him to the station was part of the arresting process. 

- The officer was fully justified in accompanying the accused to his bedroom for that 

purpose and the bedroom was, in a real and practical sense, part of the immediate 

surroundings. 

- The searches were therefore well within the limits of valid searches incidental to 

arrest. 

- The fairness of the trial was not affected and the evidence should therefore be 

admitted, even if it had been necessary to consider the effect of s. 24(2). 

- (2) There was no unfairness or error in the manner in which the trial judge 

summarized and reviewed portions of the evidence. 

- (1) The police may look closely at property seized upon a person’s arrest. 

-People have a lower reasonable expectation of privacy after arrest and detention 

(discussed in North and Olsen). 

- The bills were taken from accused during a legitimate search upon his arrest. 

- The trial judge correctly concluded that the accused had no control over these 

articles and therefore could not have had a reasonable expectation of privacy. 

- (2) Even if s. 8 had been technically breached, the evidence should properly have 

been admitted under s. 24(2). 

- The broader public interest mitigates in favour of allowing this evidence. To do 

38


(Judge) 




Reasoning 



R. v. Wagner 

[1994] B.C.J. No. 101 


Taylor and Gibbs JJ.A. 

(con). 

* Final Level 

Property – vehicle 

(warrantless) 

R. v. Olson 

[1993] B.C.J. No. 

2529 

Gibbs J.A.; Corrothers 

and Southin JJ.A. 

(con). 

* Final Level 

envelope. 

- The appellant lived with his 

aunt in her trailer. 

- The police suspected the 

appellant of wrongdoing and 

obtained the aunt's consent to 

search the trailer without a 

warrant. 

- The police seized certain 

items and the appellant was 

charged with breaking and 

entering and possession of 

stolen property. 

- Following his arrest, the 

accused made calls while in 

custody. 

- These calls were intercepted 

and recorded by the police. 

- The accused argued that the 

transfer to the RCMP of the 

recordings was a seizure. 

• NO 

- Charter, ss. 8, 9, 24(2). - (1) Did obtaining only the aunt’s consent 

and searching without the warrant violate s. 8 


- Charter, ss. 8, 24.; 


• NO 

- (1) Were the recordings unreasonably 

seized? 

• NO 

otherwise would bring the justice system into disrepute. 

- Admitting this evidence would not render the accused’s trial unfair. 

- (1) Before the police commenced their search they had grounds to obtain a 

warrant. 

-In fact, police were in the process of obtaining a warrant and did not obtain it 

because an officer at the trailer telephoned to advise that the aunt had consented to 

the search. 

- (1) All those within the detention centre were informed that no privacy attached to 

communications made while in the centre. 

- Once convicted and in detention, the reasonable expectation of privacy is low (first 

said in R v. Stillman, also mentioned in North and Copan) 

- Ref. to Hunter (s. 8 only protects a reasonable expectation of privacy). 

- Ref. to Plant (informational privacy; core biographical information). 


Wiretap (Prison) 

inmate 

R. v. Olson 

[1993] B.C.J. No. 

1344 

Toy J.A.; Legg and 

Rowles JJ.A. (con). 

* Final Level 


Wiretap (prison 

inmate) 

R. v. Sandhu 

[1993] B.C.J. No. 

1279 

- The appellant was convicted 

of robbery based mainly on 

telephone conversations 

intercepted pursuant to 

section 43 of the Correction 

Centre rules and regulations. 

-These calls were recorded 

while the accused was 

detained at the pre-trial 

centre. 

- Police searched the 

accused’s bags at the airport 

and found 2kg of cocaine. 


- Constitution Act, 1982, s. 

52(1). 


- Criminal Code, s. 495, 

495(1)(a); 

- (1) Did the use of this evidence violate s. 8 


• NO 


expectation of privacy with respect to the bags 

at the airport? 

- (1) There were no exceptional circumstances justifying the application. 

- The striking down of otherwise validly enacted legislation was a serious matter 

which should have been raised in the proper forum so that evidence relevant to the 

issue could be adduced and considered. 

- (1) There was no evidence linking the accused with the bag or its contents as of the 

date of seizure. 

- Although the bag and its contents were found in the accused's apartment the 

39


(Judge) 




Reasoning 



Prowse J.A.; Toy and 

Southin JJ.A. (con). 



by SCC) 


- The bag was sent by an 

accomplice. 

- Upon listening to a 

conversation through an 

apartment door, police feared 

the destruction of evidence 

and entered to arrest the 

accused and accomplices. 


10. • NO 

- (2) Was there a violation of the accused’s 

reasonable expectation of privacy when the 

police stood at the door of apartment and 

eavesdropped (ear to door)? 

• YES 


• NO 

following day, the privacy interest which the accused asserted was a reasonable 

expectation of privacy in his home and not with respect to the bag and its contents. 

- The accused therefore did not have standing to challenge the admissibility of the 

evidence obtained in the search and seizure of the bag at the airport. 

- A person inside an apartment could have no reasonable expectation of privacy with 

respect to conversations which could be overheard with the unaided human ear from 

outside the apartment. 

- The public has a reasonable expectation of privacy in their home, which includes 

the expectation that a person's conversations, carried on in a "normal" tone of voice, 

will not be eavesdropped upon by police in the manner which occurred here: 

someone using the hallway in a normal manner couldn’t have overheard the 

conversation taking place in the accused's apartment. 

- (2) The invasion of privacy in this case was not of the magnitude of the invasion of 

privacy accompanying searches by means of electronic devices. 

- Admitting the evidence would not deprive the accused of a fair trial. 

- Police were acting in good faith and were in hot pursuit of the accused and his 

accomplice. 

- The evidence obtained as a result of the search should not be excluded here under 

s. 24(2). 

R. v. Melenchuk 

[1993] B.C.J. No. 558 

Gibbs J.A.; 

Corrothers and Prowse 

JJ.A. (con). 

*Final Level 


Person; 

Procedural fairness 

R. v. Dilling 

[1993] B.C.J. No. 865 


with, and convicted of, 

counterfeiting U.S. money. 

- He challenged the search 

warrant based on alleged 

deficiencies in the 

information used to obtain it. 

- The Provincial Court judge 

found that none of the alleged 

misstatements or half-truths 

were intended to mislead the 

issuing Justice of the Peace. 

- The subject of the impugned 

statements was trivial. 

-The appellant was convicted 

of bargaining in a public 

- Charter, ss. 8, 24, 24(2).; 


450(b). 


213(1)(c), 495, 495(1)(b), 

- Did the search violate s. 8 of the Charter? 

• NO 


• NO 

- (1) Did taking the appellant’s photograph 

while he was detained violate his rights under 

- Ref. to Kokesch (warrant obtained in breach of Charter not valid; police must act 

in good faith when conducting search). 

- Ref. to Hunter (s.8 protects reasonable expectation of privacy only). 

- (1) Where there is no intent to mislead, the appellant must prove that the 

misstatements or half-truths were so significant as to affect the information as a 

whole in terms of rendering it misleading,which he was not able to do. 

- (2) If there is deliberate deception in obtaining the warrant, it would be quashed 

and the evidence obtained through execution of the warrant would likely be 

excluded, but this was not the case here so the evidence should not be excluded. 

- Thus, even accepting that there were misstatements, omissions and half-truths in 

the information for the warrant, the evidence was at risk of exclusion under s. 24(2) 

only if those shortcomings were in furtherance of a deliberate intent to mislead. 

- Ref. to Kokesch (boundaries of perimeter search of residence; test to determine 

whether search was unreasonable). 


- (1) The photographic record was a means of refreshing the recollection of the 

undercover officer as to the identity of the person who communicated with her on 

40


(Judge) 




Reasoning 



Goldie J.A.; 

McEachern and 

Taggert JJ.A. (con). 

*Final Level 


Person 

(photo/identity) 

place for the sexual services 

of a prostitute. 

- He alleged that the police 

officers, in photographing 

him without his consent 

while he was detained, 

violated his Charter rights (ss 

7, 8 and 10(a) and(b)). 

495(2)(d)(i); 


10(a), 10(b), 24(2). 

s. 8 of the Charter? 

• YES 


• NO 

the night in question. 

- It was also one of the means by which the detaining officers could be satisfied it 

was in the public interest that the appellant be arrested. 

- (2) The evidence should not be excluded because the sole purpose of the unposed 

photograph was to preserve evidence of identification, which is "real evidence" of an 

identity that existed before the police came on the scene. 

- This must be distinguished from participation in a line-up, which requires an 

intentional act by the accused giving rise to evidence emanating from the accused. 

R. v. Campbell 

[1993] B.C.J. No. 

2752 

Wood, J.A.; Legg and 


*Final Level 


Home (Knocking) 

R. v. Boersma 

[1993] B.C.J. No. 

2748 

Lambert J.A.; Taylor 

and Prowse JJ.A. 

(con). 

* Affirmed at SCC 


Home – perimeter 

search 

- Police officers approached 

the accused’s residence and 

knocked on the front door. 

- When the door was opened, 

potentially stolen property 

was visible inside the house. 

-Upon entering the house, 

more stolen goods were 

recognized and the accused 

was arrested. 

- Two police officers 

discovered a road barred by a 

padlocked chain. 

- The accused was beyond the 

fenced area. 

- The police crossed over the 

fence, approached the 

accused, and discovered 

marijuana cultivation in 

progress. 

- They arrested the two 

people cultivating the 

marijuana. 

- The cultivation was taking 

place on Crown land adjacent 

to land over which the father 

of one accused asserted 

ownership or occupancy 

rights. 



686(1)(a). 

- (1) Did the knocking and seizure constitute a 

violation of s. 8 of the Charter? 

• YES 


• NO 

- Charter, ss. 8. 24(2). - (1) Did the police breach the accused’s 

reasonable expectation of privacy? 

• trial judge said YES 

• court of appeal said NO 


• NO 

- Ref. to Duarte (applied) 

- (1) The knock and the seizure violated the reasonable expectation of privacy to 

which the occupants were entitled in their own home. 

- Since the police had no warrant, the search was unreasonable. 

- (2) However, despite the violation of s. 8 of the Charter, the evidence should be 

admitted pursuant to s. 24(2) of the Charter (related to the broader public interest) 

- Admitting the evidence wouldn’t bring the administration of justice into disrepute. 

- Ref. to Kokesch (police must act in good faith when conducting search). 

- Ref. to Mellenthin. 

- (1) There can be no reasonable expectation of privacy on Crown land that is 

accessible to everyone. 

- The accused did not possess the land and there was therefore no reasonable 

expectation of privacy. 

- There is a different reasonable expectation of privacy with regard to activities 

being carried on in a private house than there is for activities being carried out in the 

open air and particularly in the open air on Crown land. 

- (2) There was no breach of reasonable expectation of privacy and therefore no 

breach of s. 8 of the Charter. 

- It is therefore not necessary to do a s. 24(2) analysis. 

- Ref. to Kokesch (private dwelling vs. Crown land). 

- Ref. to Plant (dignity, integrity, and autonomy of the accused not affected). 

41


(Judge) 




Reasoning 



R. v. Neill 

[1993] 33 B.C.A.C. 

118 

Taggart J.A.; Wood 

and Gibbs JJ.A. (con). 

*Final Level 


Home 

(Perimeter Searches) 

R. v. Blinch 

1993 CanLII 1433 

(BC C.A.) 

Rowles J.A.; 

Southin and Legg 

JJ.A. (con). 

* Final Level 


Home 

- A police officer received 

information from an 

informant that marijuana was 

being grown on the accused’s 

premises. 

- The officer's believed the tip 

was reliable based on 

previous interaction with the 

informant. 

- The officer walked onto the 

accused’s property to check 

the house number and he 

observed that the basement 

windows were blocked. 

- Finding this suspicious, the 

officer obtained a warrant to 

search the premises. 

- Based on information 

provided by a neighbour, the 

accused’s wife fears her 

husband will kill himself, 

their kids and his in-laws. 

- The neighbour, who had 

been authorized to enter the 

premises by the accused and 

his wife, granted police 

access/entry to the accused’s 

residence. 


warrant and seized wills, 

guns and ammunition. 

– They did not disclose in the 

application for a warrant that 

police had previously entered 

the property. 

- The appellant seeks to have 

the handwritten wills 

excluded from evidence. 

- Charter, ss. 8, 24(2). - (1) Did the police violate s. 8 of the Charter 

by walking onto the accused’s property to 

check the house number? 

Charter, s.8. 

• NO 

- (1) Did the warrantless search violate the 

accused’ s.8 rights? 

• YES 

- (2) Was the failure to disclose the 

warrantless search sufficient to vitiate the 

search warrant that was subsequently issued? 

• NO 

- (3) If the search warrant wasn’t vitiated, 

should the evidence be excluded under 24(2)? 

• NO 

- (1) There could be no expectation of privacy in a house number so no infringement 

of the accused's rights under the Charter occurred. 

- The officer's conduct in walking parallel to the front of the house and looking 

down the side of the house while leaving the premises was no more than a most 

insignificant trespass. 

- The officer went on the premises to confirm the residential address rather than to 

conduct a perimeter search. 

- Ref. to Kokesch (evidence obtained through a Charter breach invalid; boundaries 

of a perimeter search of home; facts of two cases compared). 

- Ref. to Hunter (purpose of s. 8; Hunter standard). 

- (1) Warrantless searches are presumed unreasonable. 

- The search was not otherwise authorized by statute. The neighbour who provided 

access could not waive the accused’s rights. 

- At issue was the validity of “consent searches” without a warrant. This was 

recognized as an area not well developed in the case law. 

- (2) Police learned nothing new when they entered but rather confirmed what the 

neighbour had told them. Her information would have been sufficient for the 

issuance of warrant. 

- If a Justice of the Peace is misled then the warrant will be vitiated (and admitting 

evidence obtained in such circumstances would bring the administration of justice 

into disrepute). 

- (3) Factors (following Collins): 

• trial Fairness; 

• “real” evidence obtained in violation of Charter will “rarely operate unfairly for 

that reason alone”; 

• the seriousness of the Charter violation: Court must discourage egregious police 

conduct. Factors in determining seriousness are whether the violation was 

deliberate, wilful or flagrant, or committed in good faith; whether the violation 

was motivated by urgency or necessity to preserve evidence; and whether other 

investigative techniques were available. 

- In this case police conduct not egregious because: police faced an urgent need for 

42


(Judge) 




Reasoning 



information in an explosive situation where human life at risk; and it was not 

unreasonable for police to assume that neighbour had implied authority (from 

accused’s spouse) to grant access. 

- The law regarding s.8 violations on the basis of third-party consents is not well 

developed. Police action was characterized as a good faith mistake rather than a 

flagrant disregard for Charter rights. 

- The offence is serious - many police were required to ensure that lives were not 

endangered and evidence is needed to convict. Excluding evidence would have a 

more negative impact on administration of justice than admitting it. 

Pierre v. Pacific Press 

Ltd. 

1993 CanLII 577 (BC 

C.A.) 

Taylor J.A.; 

McEachern and Goldie 

JJ.A. (con). 



by SCC) 


and Photographs 

R. v. Arason 

1992 CanLII 1008 (BC 

C.A.) 

Cumming J.A.; 

Proudfoot and Goldie 

JJ.A. (con). 

* Final Level 


Business (perimeter 

search) 

-A woman undergoing 

treatment at rehabilitation 

centre claimed to have 

witnessed a murder. 

- Press interviewed and 

photographed her at the 

centre and she subsequently 

asked a nurse to contact the 

press to ask them not to 

disclose her identity. 

- The press did disclose her 

identity (name and photos) 

and that she was a patient at 

the treatment centre while the 

killers were still at large. 


perimeter of a business 

premises, including the roof. 

-The accused, who was 

inside, was not a lessee. 

-Police looked through the 

mail box and detected the 

smell of marijuana coming 

from an external vent. 

- The accused was observed 

visually and with binoculars. 

- Upon his arrest, the 

- Crown Liability and 

Proceedings Act; 

-Privacy Act; 

-Charter, s.2(b). 

- Narcotics Control Act 

and Criminal Code; 

- Charter s.8, s.9, s.24(2). 

- The issues were technical ones concerning 

the trial judge’s decision to refuse a jury trial. 

The judge’s decision was based on the fact 

that: 

• the case involved novel issues of law that 

are of an ‘intricate and complex 

character’ (Supreme Court Rules) and 

thus not suitable for a jury trial; and 

• the CBC is immune from jury trials 

under Crown Liability and Proceedings 

Act. 

The Court of Appeal found insufficient 

arguments to resolve issues of law and set the 

case down for further hearing. It also found 

that the CBC not immune. 

- (1) Was the perimeter search a violation of 

accuseds’ s.8 rights? 

• NO 

- (2) Was the vehicle search a violation of the 

accuseds’ s.8 rights? 

• NO 


- Ref. to Kokesch (boundaries of a perimeter search). 

- Ref. to Hunter (warrantless search is presumed to be unreasonable). 

- Although matter was not resolved, the following were issues raised and court’s 

response: 

• The plaintiff’s claims concern the infliction of psychological injury (she worried 

for her safety as perpetrators were at large) and violating the Privacy Act (tort of 

violation of privacy). 

• The defendant claims that s.2(b) of Charter (freedom of the press) answers a 

claim in negligence and under the Privacy Act. The court found that journalists 

have no special privilege re publishing things that may be harmful and also found 

that the Charter is no answer under Privacy Act unless there is consent. It is a 

question of law whether there was a reasonable expectation of privacy in the 

gathering of information by the press. 

- (1) The accused had no standing to bring a Charter infringement complaint 

because they were not the ‘occupants’ of the premises in that they were not lessees 

or owners. Even if they were ‘occupants’, there is no reasonable expectation of 

privacy with regard to the perimeter of a commercial premises since the exterior 

and the parking lot are generally accessible to the public. According to the terms of 

the lease, even tenants had no right of control of the exterior of the building, 

including the roof. Looking through the mail box may have been improper, but 

nothing seen was used. 

- (2) There were reasonable and probable grounds for the arrest and search; 

therefore the unwarranted arrest and search were not unlawful. The applicable test 

is from Storrey (SCC): “An arrest without warrant may be made where the officer 

43


(Judge) 




Reasoning 



accused’s keys were seized, 

allowing entrance to his van. 

- Police searched the van a 

second time after arresting 

the accused and a hydro bill 

was seized. 

NO 

believes on reasonable and probable grounds that the accused has committed an 

indictable offence and where such grounds are objectively justifiable. He need not 

establish a prima facie case for conviction before arresting.” 

-“A search may occur before or after formal arrest as long as the grounds for the 

arrest exist prior to the search. A police officer is entitled to make a reasonable 

search of the person arrested and the place where he is arrested. See R. v. Debot, 

(1986), 30 C.C.C. (3d) 207 (Ont. C.A.) at 233. Specifically, police officers are 

entitled to search an accused and the car driven by him which is in the immediate 

surrounding area as an incident of lawful arrest. See R. v. Speid (17 September, 

1992) [sic] (Ont. C.A.) [since reported, (1991), 8 C.R.R. (2d) 383], leave to appeal 

refused, May 7, 1992).” 

- (3) The police were acting in good faith, there was no capriciousness, and the 

warrant could have been issued based on the circumstances. Excluding the evidence 

is more likely to bring the administration of justice into disrepute than admitting it. 

R. v. Jopowicz 

1992 CanLII 815 

(BC C.A.) 


Legg and Rowles 

JJ.A. (con). 

* Final Level 


wiretap 

- An undercover police 

officer taped a conversation 

using a concealed recording 

device. 

- The recordings were made 

in the accused’s place of 

business, which he owned, 

and in the undercover 

officer’s car. 

- Charter, s.8. - (1) Did recording the conversation without a 

warrant violate the accused’s s.8 rights? 

• YES 


• NO 

- Ref. to Kokesch (boundaries of a perimeter search; police must act in good faith). 

- (1) It was conceded that the recording was an unreasonable search and seizure 

(violation of s.8). 

- (2) The onus is on the accused to establish that admitting evidence would bring the 

administration of justice into disrepute. 

-Following Duarte and Wiggins: 

• Police acted in good faith regarding their understanding of the law (they 

thought one-party consent was sufficient for taping). 

• Police could have obtained judicial authorization – they had reasonable and 

probable grounds, not mere suspicion. If there were no reasonable/probable 

grounds it would bring the administration of justice into disrepute to admit the 

evidence. 

- There was some discussion of the need to exhaust other investigative techniques 

before applying for judicial authorization to tape conversations. 

R. v. Ericson 

[1991] B.C.J. No. 

3763 

McFarlane J.A.; Legg 

and Hollinrake JJ.A. 

(con). 

- On suspicion of having 

stolen 33 pieces of art from a 

gallery, the police conducted 

a warantless search of the 

outside of the appellant's 

residence from which 

suspected stolen art could be 

- Charter, ss. 8; 

- Criminal Code, R.S.C. 

1985, c. C-46, ss. 355. 

- (1) By searching the perimeter of the 

accused’s house without a warrant, did the 

police violate s. 8 of the Charter? 

• YES (based on Kokesch) 


- (1) Although the search violated s.8, it was conducted in good faith, and given the 

accused's extensive criminal record, the trial judge properly considered the 

protection of the public to be a dominant factor. 

- Ref. to Kokesch (evidence obtained through Charter breach invalid; police must 

act in good faith). 

44


(Judge) 




Reasoning 



*Final Level 

Property search - 

Home - Perimeter 

McPherson v. 

Institute of 

Chartered 

Accountants of 

British Columbia 

[1991] 55 B.C.L.R. 

(2d) 286 

Anderson, J.A.; 

Hollinrake and 

Cummings JJ.A. (con). 

*Final Level 



R. v. Lunn 

[1990] 61 C.C.C. (3d) 

193 

Hinkson J.A.; 

Taggart and 

MacFarlane JJ.A. 

(con). 

*Final Level 


Person 

(Blood Sample) 

viewed inside. 

- The officer was not asked 

whether he had a warrant to 

search, nor was he questioned 

regarding the reasons for his 

being on property or whether 

he had authorization to enter. 

- The appellant was arrested 

and shortly thereafter a 

search warrant was obtained 

to enter the house, where four 

prints were found. 

- The bylaws of the Institute 

of Chartered Accountants 

establish a random practice 

review program (including 

“the making and taking away 

of documents”). 

- The program was 

challenged as violating ss. 7 

and 8 of the Charter because 

of its vague and unknown 

standards, which make it 

impossible for one to defend 

against a charge of 

incompetence. 

- The accused was involved 

in an accident as a result of 

which is wife was killed. 

- He was taken to hospital 

where blood samples were 

taken for medical purposes. 

- He refused an officer's 

request for blood samples. 

-Two days later the police 

called the hospital to enquire 

whether it had blood 

samples. After obtaining an 

affirmative answer from a 

- Charter, ss. 7, 8. - (1) Does the random review process violate 

a person’s reasonable expectation of privacy? 

• NO 

- Charter, ss. 7, 8., 11(d). - (1) Did seizing the blood samples after the 

accused refused to provide one constitute a 

violation of s. 8 of the Charter? 

• NO 

- (1) Taking into account all relevant factors, the random review procedure 

enunciated in the bylaws did not offend the Charter. 

- Ref. to Hunter (purpose of s. 8; reasonable expectation of privacy must be 

breached for there to be unreasonable search and seizure) 

- (1) The doctor was not an agent of the state in responding to the officer's inquiry, 

therefore the Charter does not apply to him. 

- Even if it did, however, the officer didn’t request material evidence against the 

accused, he only asked for information regarding the blood sample. 

-There is therefore no breach of s. 8 of the Charter. 

- Ref. to Dyment (regarding the need for consent from the accused when taking his 

bodily substances). 

45


(Judge) 




Reasoning 



R. v. Nicholson 

[1990] 53 C.C.C. (3d) 

403 

Toy J.A,; MacDonald 

and Locke JJ.A. (con). 

*Reversed SCC 

Home Search 

(perimeter search) 

R. v. Donaldson 

[1990] 58 C.C.C. (3d) 

294 

Hinkson J.A.; 

Legg and Wood JJ.A. 

(con) 

* Final Level 

Surveillance 

Wiretap/ 


doctor, the police requested 

that the samples not be 

destroyed, obtained a search 

warrant, and seized the blood 

samples.. 

- Suspecting the accused was 

purchasing fertilizer for 

narcotics purposes, police 

examined his garage. 

- Police made small holes in 

the doors, windows and roof 

vents of the garage. They 

observed plants growing 

under lights and then 

obtained search warrants to 

enter the home. 

- The accused asked to speak 

to a lawyer but agreed to wait 

until his children were 

removed. 

- During this period the 

accused initiated a 

conversation with police and 

made several incriminating 

statements. 

- Insider trading was revealed 

when the RCMP obtained 

search warrants based on 

information obtained through 

authorized intercepted private 

communications. 

- The phrase "reliable, 

confidential source" was used 

to obtain the warrants when, 

in fact, the source wasn’t 

reliable. 


24(2); 

-Criminal Code; 


4(2), 6(1), 10(1) (a) [rep. 

and sub. 1985, c. 19, s. 

200(1)] -- now R.S.C. 

1985, c. N-1. 



178.16(1)(b), 762(1) (a), 

189(1)(b), 312, 423(1)(d), 

487(1)(b), and 830(1)(a). 

- (1) Was the search tainted by the earlier 

warrantless searches and did it constituted an 

unreasonable search and seizure? 

• NO 

- (2) Should the evidence obtained on the 

search and the incriminating statements be 

excluded at trial? 

• NO 

- (1) Were the police deceptive in acquiring 

the warrant and thus violate s. 8 of the 


• YES 


• YES 

- (1) No warrant was required to search the garage. 

- Under s. 10 of the Narcotic Control Act an officer may enter and search any place 

other than a dwelling without a warrant where he reasonably believes a narcotic is 

present whose presence would constitute an offence. 

- (2) A garage is not a dwelling-house. The manner of the surveillance was not 

unreasonable and property damage was minimal. 

- Ref. to Kokesch (one's expectation of privacy must give way to the government's 

interest in advancing its law enforcement goals; the perimeter search of external 

boundary of dwelling house was not unreasonable even though the police officers 

were trespassers). 

- Ref. to Hunter (s. 8 protects a person’s reasonable expectation of privacy and 

police need a warrant to conduct a search). 

- (1) The information given to the Justice of the Peace was misleading: the normal 

interpretation of “reliable source” would be that the information had come from an 

informant, not a wiretap. 

- (2) Admitting the evidence would have brought the administration of justice into 

disrepute because it would condone police misconduct. 

46


(Judge) 




Reasoning 



FEDERAL COURT OF APPEAL 

Canada v. Norwood 

2001 CanLII 22155 

(F.C.A.) 

Strayer J.A.; Sexton 

and Sharlow JJ.A. 

(con). 

* Final Level 


Ruby v. Canada 

(Solicitor General) 

(C.A.) 

[2000] 3 F.C. 589 

Létourneau J.A.; 

Robertson, Sexton 

JJ.A. (con). 

* Affirmed SCC 

- A Revenue Canada auditor 

was conducting an audit in the 

building of the audited 

corporation. 

- The auditor entered the 

private office of one of the 

company’s accountant (when 

the accountant was out of 

town) to use the telephone. 

-The auditor saw a file for the 

corporation, opens it, and 

photocopied notes made by 

the accountant in an interview 

with a client. 

- These facts were not 

disclosed to the accountant or 

the client. 

- Certain governmental 

organizations (the RCMP, 

CSIS and the Department of 

External Affairs (DEA)) 

refused access to (or in some 

cases refused to confirm or 

deny the existence of) 

personal information held in 

their databases. 

- Charter s.8, s.24. - (1) Did taking and photocopying the 

accountant’s notes constitute an unreasonable 

search and seizure in violation of s.8? 

- Charter s.7 and 8; 

- Privacy Act, s.51; 

- Access to Information 

Act. 

• YES 

(2) What is the remedy under s.24? 

• Exclude the notes as evidence. 

- (1) Do the mandatory provisions of the 

Privacy Act (s.51) with respect to in camera 

and ex parte hearings contravene ss. 7 and 8 


• NO 

- (1) Even though the accountant’s notes recording personal information attract a 

low reasonable expectation of privacy, there is nevertheless some expectation of 

privacy which protects against the secret taking of information without notice, 

request or consent. 

- Because the section of the Privacy Act in question is merely procedural, the liberty 

interest is not engaged. 

- In obiter, the Court noted that ss. 7 and 8 may be engaged by other sections of the 

Act; a corollary to a reasonable expectation of privacy is a reasonable expectation of 

access (if only to verify accuracy). 


Gernhart v. Canada 

(C.A.) 

[2000] 2 F.C. 292, 

Sexton J.A.; Rothstein 

and Noel JJ.A. (con). 

* Final Level 


- In an appeal regarding an 

income tax assessment the 

Minister of National Revenue 

is required transmit to the Tax 

Court copies of all returns, 

notices of assessment, notices 

of objections and notifications 

that were relevant to the 

appeal. These then became 

available to the public at large. 

Charter s.8 and s.1. 

- (1) Does the transfer of documents pursuant 

to the section constitute an unreasonable 

seizure? 

• YES 

- (2) What is the appropriate remedy? 

• Strike down the section. 

- (1) A low reasonable expectation of privacy exists in income tax returns; however, 

this small degree would be shattered if tax records were revealed to public at large. 

Consequently, the section violates s.8 and is not saved under s.1. 

- Note that the section had not changed in many years and the Court took note of the 

changing environment: 

• “Since photocopies could not be easily made until approximately twenty years 

ago, subsection 176(1) was simply a benign method to provide adjudicators 

with information about tax disputes that they were due to hear. 

• In his factum, counsel for the Minister also conceded that "the impugned 

provision . . . has by reason of developments in the social, technological and 

47


(Judge) 




Reasoning 



legal field become a historical aberration." 

• He admitted "that there is a troublesome appearance arising from the 

requirements of subsection 176(1) of the Income Tax Act" in that the Minister 

provides documents to the Tax Court in the absence of the other party. 

• In oral argument, it was again conceded that subsection 176(1) did not serve any 

useful purpose. Nevertheless, it was argued, the mere fact that legislation does 

not keep pace with the times "does not make it violative of Charter values." 

(paras 37 and 38) 

Smith v. Canada 


2000 CanLII 14930 

(F.C.A.) 

Judgement of the 

Court: Decary, Sexton 

and Evans. 

* Affirmed by SCC 


Schreiber v. Canada 


(C.A.) 

[1997] 2 F.C. 176 

Linden J.A.; Henry 

J.A. (con); Stone J.A. 

(dis). 

* Reversed by SCC 


Del Zotto v. Canada 

(C.A.) 

[1997] 3 F.C. 40, 

MacGuigan J.A.; 

- The plaintiff left Canada 

while on Employment 

Insurance in violation of 

program requirements. At the 

border on his return he filled 

out a form for Canada Customs 

(CCRA). 

- That information was shared 

with the Canadian 

Unemployment Insurance 

Comission. 

- Without judicial 

authorization, the Crown 

requested information from 

the Swiss government about 

the accused’s Swiss bank 

account. 

- Section 231.4 of the Income 

Tax Act permits the Minister 

to authorize an Inquiry into 

anything relating to the 

administration or enforcement 

- Charter, s.8. - (1) Is there a reasonable expectation of 

privacy in customs declaration forms with 

respect to cross matching with unemployment 

records? 

• NO 

- Charter, s.8. - (1) Must the Canadian standard for the 

issuance of a search warrant be satisfied 

before the Minister of Justice and the Attorney 

General submit a request to search and seize 

banking records and documents in a foreign 

jurisdiction? 

- Income Tax Act, S. 

231.4; 

- Charter, s.7 and s.8. 

• YES 

- (1) Does the section of the Income Tax Act 

that permits an Inquiry to be established 

infringe s.8? 

• YES 

- Ref. to Hunter (purpose of s. 8; protecting reasonable expectation of privacy). 

- (1) “The nature of the information, the relationship between the appellant and other 

returning Canadian residents and Customs, the place and manner in which the 

disclosure of E-311 information was made and the seriousness of the offence under 

investigation, that the appellant and other Canadian residents returning to Canada by 

air … cannot be said to have held a reasonable expectation of privacy in relation to 

their E-311 information disclosed to the Commission, which outweighs the 

government's interest in enforcing the laws disentitling unemployment insurance 

claimants from receiving benefits while outside of Canada. The disclosure of E-311 

information in this case is not in violation of section 8 of the Charter.” (para. 4) 

- (1) The respondent was the subject of a Canadian criminal investigation by 

Canadian authorities and the information obtained could be used in a criminal 

prosecution in Canada. 

• Although the bank accounts were not in Canada (and therefore subject to laws 

and authorities over which the Charter would have no application), the privacy 

interest was jeopardized by the letter of request that was initiated in Canada. 

• Therefore prior authorization is necessary for a lawful search and seizure. S.8 

protects people not places and the right to be secure against unreasonable 

searches contemplates pre-authorization since privacy, once lost, cannot be 

restored. 

- Ref. to Hunter (purpose of s. 8; protects only reasonable expectation of privacy). 

- Ref. to Plant (informational privacy; protecting core biographical info). 

- Ref. to Kokesch (police acting in good faith when conducting search). 

- MacGuigan (Henry concurring): A subpoena that orders the appearance and 

production of documents violates a reasonable expectation of privacy. There is a 

reasonable expectation of privacy in documents held by others. Concern that person 

who might be subject to criminal proceedings might be required to appear. 

- Strayer (dis): There is no basis for declaring the section invalid. Relative to a 

48


(Judge) 




Reasoning 



Henry J.A. (con); 

Strayer J.A. (dis). 

* Reversed by SCC 


of the Act. 

- The Inquiry can lead to 

summoning and enforcing 

attendance of witnesses, and 

compelling them to give 

evidence. 

- In this case, Noble would 

have been compelled to 

produce documents belonging 

to Del Zotto. 

- (2) What is the appropriate remedy? 

• Strike the section down. 

search, a subpoena does not result in a major privacy intrusion. There is a 

presumption that no expectation of privacy attaches to the documents and if there it 

does and a violation of s.8 would occur, this can be raised with the hearing officer 

and, if necessary, judicial review. 


- Ref. to Hunter (warrantless search presumed to be unreasonable; s. 8 only protects 

a reasonable expectation of privacy) 

MB COURT OF APPEAL 

R. v. Guiboche 

2004 MBCA 16 

Freedman J.A.; Kroft 

and Monnin JJ.A. 

(con). 



by SCC) 

- The accused was found and 

arrested in his father’s house. 

-He was not living in his 

father’s house. 

- At the time of the arrest, 

police searched the room in 

which the accused was found. 

- Charter, s. 8. - (1) Did the search and seizure in the room 

violate s.8? 

• NO 

- (1) The accused had no reasonable expectation of privacy in the room because it 

was not his dwelling place (which would be subject to a reasonable expectation of 

privacy). 

- Ref to Edwards (totality of circumstances test). 

Property – Home 


R. v. Campbell 

2003 MBCA 76 

Scott J.A.; Hamilton 

and Freedman JJ.A. 

(con). 

* Final Level 

- In the context of an 

investigation, the accused’s 

car was stopped and the 

accused was asked to provide 

his driver’s licence. 

- Charter, s.8; 

-Highway Traffic Act. 

- (1) Did the requirement to produce a driver’s 

license violate s.8? 

• NO 

- (1) Requiring the production of a driver’s license for inspection (under the 

Highway Traffic Act) is not a search within the meaning of s.8 because it does not 

violate a reasonable expectation of privacy. 

- Ref. to Plant (contextual approach). 

- Ref. to Kokesch (evidence obtained through Charter breach not admissible). 

Vehicle Search 

R. v. Lamirande 

2002 MBCA 41 

Scott J.A.; Philip and 

Monnin JJ.A. (con). 

- While being transfered from 

one custodial facility to 

another, the accused was 

searched and papers and 

documents were seized. 

- Charter, s.8. - (1) Did the search and seizure of documents 

and papers violate s.8? 

• NO 

- (1) The accused had no reasonable expectation of privacy in the context of 

admission to the custodial facility. 

- Ref. to Plant (contextual approach; dignity, autonomy and integrity of individual). 


- Ref. to Hunter (warrantless search presumed to be unreasonable). 

49


(Judge) 




Reasoning 



• Final Level 

(Leave to appeal 

dismissed by 

SCC) 


R. v. Z. (S. M.) 

1998 MBCA 18 

Philip J.A.; Kroft and 

Lyon JJ.A. (con). 

*Final Level 

-A Vice Principal searched a 

high school student’s locker 

and seized drugs. 

- Charter, s.8. - (1) Did the search and seizure violate s.8? 

• NO 

- (1) A student has a significantly diminished reasonable expectation in the school 

environment, particularly with respect to a locker that has been provided by the 

school, is shared with another student and has the combination of the lock recorded 

by the school’s administration (which is at the lower end of the expectation of 

privacy scale in the school). Additionally, the Vice Principal had valid reasons for 

wanting to search the locker. 


School Locker 

- Ref. to Hunter (purpose of s.8). 

NB COURT OF APPEAL 

Mitchell v. R. 

2005 NBCA 104 

Robertson J.A.; 

Deschênes J.A. (con); 

Richard J.A. (dis). 

* Final Level 



accused’s car and seized drugs 

found hidden behind the gas 

cap. 

- The car was seized and 

detained after the accused was 

arrested for obstruction of 

justice. 

- Charter, s.8. - (1) Did the search and seizure violate s.8? 

• YES 


• YES 

- (1) A search that is incidental to an arrest can only be made with respect to the 

purpose for the arrest. 

- (2) The accused must demonstrate on the balance of probabilities that admitting the 

evidence would bring to the administration of justice into disrepute. 

• Factors (following Collins): “(1) determine whether the admission of the 

evidence would impact on the fairness of the trial; (2) assess the seriousness of 

the breach; and (3) determine whether the justice system’s repute would be 

served by the admission of the evidence rather than its exclusion.” (para. 20). 

• Here evidence not conscripted, therefore trial fairness not affected. 

• Factors to consider when considering seriousness of the breach: “(1) was the 

Charter breach serious or of a technical nature?; (2) did it occur in 

circumstances of urgency or necessity?; (3) was the search obtrusive in nature?; 

(4) did the accused have a heightened expectation of privacy with respect to the 

area searched?; (5) was the warrantless search conducted in circumstances 

where the police had reasonable and probable grounds; (6) could the evidence 

have been obtained by other investigatory techniques that did not breach the 

Charter?; and (7) did the police act in good faith?” (para. 21) 

-While there is a lesser expectation of privacy in a car than in a dwelling or an 

office, there was no pressing need to search the car without a warrant and the car 

was in the custody and control of the police. 

50


(Judge) 




Reasoning 



-With regard to good faith, the police claimed to have had an honest and reasonable 

belief that the search was lawful. 

- As to whether the misunderstanding was reasonable, because the law is settled and 

has been on the books for 8 years, ignorance of the law cannot be accepted. 

- Following “Justice Sopinka in R. v. Kokesch, either the police knew or ought to 

have known the law with respect to a vehicle search that is incidental to an arrest. 

Clearly the police ought to have known.” (para. 31) 

- Consequently the police did not act in good faith and evidence is generally 

excluded in such circumstances. An additional factor is to instil in law enforcement 

officers and their advisors the need to be vigilant regarding the extent of their lawful 

authority. (There appeared to be a concern that admitting the evidence negatively 

influence police conduct in the future). On balance, the administration of justice 

would be brought into disrepute if the evidence were admitted. 

R. v. Kelly 

1999 CanLII 13120 

(NB C.A.) 

Drapeau J.A.; 

Turnbull and Larlee 

JJ.A. (con). 

* Final Level 

- The police conducted an 

unwarranted aerial search by 

helicopter of the accused’s 

garden followed by an 

unwarranted search on the 

ground. They then seized 

uprooted marijuana plants. 

- Charter, s.8. - (1) Did the searches and seizure violate s.8 


• YES 


• NO 


- Ref to Kokesch (boundaries of a perimeter search). 

- (1) The open space adjoining the house (the accused’s garden) was subject to a 

reasonable expectation of privacy as a ‘curtilage’ of the dwelling (and not part of the 

‘open fields’ doctrine). 

• “As a rule, lawful occupants have an expectation of privacy in all open spaces 

within their residential lots that is qualitatively sufficent to invest them with s.8 

protection against unlawful aerial as well as terrestrial searches.” (para. 50). 

• The subsequent on-the-ground search was a direct result of the arial search. The 

unlawfulness of the first search taints the second and makes it unreasonable. 


aerial search 

- (2) The evidence was non-conscriptive and its admission would not render the trial 

unfair. 

• The factors in favour of exclusion (importance of rights and manner of 

intrusion) are mitigated by the fact that: (a) the accused was not there at time of 

search; (b) the search did not involve the residence as such; (c) the accused 

subsequently consented to a search; (d) the evidence was real and without it 

there would be no conviction; and (e) the accused is a peace officer (prison 

guard). 

• The searches were not a product of deliberate and reckless disregard of rights. 

R. v. Leaver 

1998 CanLII 12205 

- Police recorded a 

conversation between the 

accused and a police 

- Criminal Code, s.183; 

-Charter, s.8. 

- (1) Was the recorded conversation 

admissible? 


- Ref. to Kokesch (boundaries of a perimeter search). 

- (1) The accused knew he was speaking with a police negotiator and in these 

circumstances could not have any reasonable expectation of privacy in the sense 

that it was a private conversation under s. 183 of Criminal Code. 

51


(Judge) 




Reasoning 



(NB C.A.) 

Ryan J.A.; Turnbull 

and Larlee JJ.A. (con). 

* Final Level 

negotiator in the course of a 

hostage taking. 

• YES 


wiretap 

R. v. Legere 

1994 CanLII 3851 (NB 

C.A.) 

Ayles J.A.; Angers 

and Hoyt JJ.A. (con). 

* Final Level 

(application for 

reconsideration 

dismissed by SCC) 

Search of the 

person/Identity – 

DNA 

- Tissue paper used by the 

accused while at the police 

station was discarded by the 

accused in a wastepaper 

basket and subsequently 

retrieved and sent for DNA 

analysis. 

- Head and pubic hair samples 

were taken from the accused 

without consent. 

- Charter, s.8. - (1) Was the seizure of the tissue paper 

unlawful? 

• NO 

- (2) Was the seizure of the head and pubic 

hair unlawful? 

• YES 


• NO 

- (1) The accused no longer had a reasonable expectation of privacy in materials he 

had abandoned; therefore, the material was “gathered”, not “seized.” 

- (2) The forceable taking of ‘parts’ of a person is contrary to s.8. 

- (3) Factors in deciding whether or not to exclude evidence include: 

• What kind of evidence was obtained? This was real evidence that existed 

irrespective of the Charter violation. (As distinguished from conscripted 

evidence – e.g. self-incrimination conscripted through confession – which is 

contrary to the right against self-incrimination). 

• What Charter right was infringed? No resistance offered and done with minimal 

intrusion. 

• Was the Charter violation serious or merely of a technical nature? The violation 

was not technical. However, in view of the need to obtain information for the 

investigation, the violation was minimal. 

• Was the violation deliberate and flagrant or was in committed in good faith? 

The police acted in good faith, following an Ontario Court of Appeal case that 

held this was not unlawful (even though there was a N.B. Court of Appeal 

decision to the contrary). 

• Did the violation occur in situation of urgency or necessity? Police needed the 

information to conduct DNA analysis and there was no other way to proceed 

without getting the accused’s consent. 

• Were other investigative techniques available? A sample of blood or hair is 

needed to conduct DNA analysis. 

• Would the evidence have been obtained in any event? No. 

• Is the accusation serious? One of the most serious (murder). 

• Is the evidence essential to substantiate the charge? Seized hair samples were 

important, if not essential, to substantiate the charge. 

• Are other remedies available? In this case, no. 

- (4) Admitting the evidence would not bring the administration of justice into 

52


(Judge) 




Reasoning 



disrepute. Police were not engaged in unacceptable conduct – they had satisfied 

themselves that they were engaged in a lawful seizure incidental to an arrest. 

- Ref. to Collins and Dyment 

NS COURT OF APPEAL 

R. v. LeClaire 

2005 NSCA 165 

Roscoe J.A.; 

Cromwell and 

Freeman JJ.A. (con). 

* final level 



- Police see a door leading 

from the accused’s garage to 

his living area. 

-They enter the open garage 

and see a man through the 

door window. 

- Police knock on the door, 

advise the accused that they 

are investigating an impaired 

driving complaint and ask if 

they may enter house. 

- They are invited in. 

- Charter, s.8. - (1) Did entering through the garage door 

violate s.8? 

• NO 

- There is an implied license for members of the public and police to approach the 

door of a residence and knock. 

- In the case of the police, the purpose of the approach will be determinative as to 

whether conduct falls within the ‘implied invitation to knock.’ If police simply 

wish to communicate or are conducting an investigation then they’re within the 

implied license. If, however, police approach to gather evidence or determine 

whether suspected evidence becomes apparent when the door is opened then they’re 

not within the implied invitation to knock. (SCC Evans) 

- The distinction is based on the fact that one can refuse to answer questions - 

nothing is unwittingly disclosed. 

- Evans has been applied in several similar cases concerning entering onto the 

property in connection with drunk driving suspicions. 

- A direct route to the door is required. Police may not take a trespassory detour to 

use their senses (sight/smell) to gather evidence. 

- When police first entered the home they engaged the accused in ‘open-ended’ 

conversation. They had no grounds for arrest until they observed the condition of the 

accused and he acknowledged that he had been driving. 

- The implied invitation to knock applies only to places where one can conveniently 

knock. 

- Ref. to Evans 

R. v. Wood 

2001 NSCA 38 

Roscoe J.A.; 

Hallett and Cromwell 

JJ.A. (con). 

* final level 


- A barrister provided 

financial records to the Law 

Society as part of a regulatory 

process. 

-The records were 

subsequently seized under a 

warrant and used against the 

barrister at trial. 

- Charter, ss. 7 and 8. - (1) Was the accused’s reasonable 

expectation of privacy (per ss. 7 and 8) 

violated? 

• NO 


• NO 

- (1) The accused was required, as a condition of practising law, to provide 

documents to the Law Society upon request. These records were accessed under a 

lawful warrant. There is little, if any, reasonable expectation of privacy in business 

records required to be maintained as a condition of practising law. 

- (2) The Court also found that if there were a breach of s.8 the records would not be 

excluded under s.24(2). 


53


(Judge) 




Reasoning 



R. v. Wilcox 

2001 NSCA 45 

Cromwell J.A.; Flinn 

and Oland JJ.A. (con). 

* final level 


Canadian 

Broadcasting 

Corporation v. 

Batiot 

1997 CanLII 9853 (NS 

C.A.) 

Bateman J.A.; Roscoe 

and Freeman JJ.A. 

(con). 

* Final level (leave to 

appeal dismissed by 

SCC) 

- The accused worked at a 

fishery and sold more than his 

quota of snowcrab, contrary to 

the Fisheries Act. 

- The fishery’s books were 

seized without warrant by the 

Crown. 

- The CBC objects to 

subpoenas which order 

journalists to give evidence at 

a preliminary enquiry and to 

produce notes, records of 

communications, video and 

audio tapes made during the 

development of a program for 

the 5 th Estate. 

- Charter, ss. 7, 8, 11(c), 

11(d), 24(2); 


830(1), 830(1)(a), 

830(1)(b), 830(1) (c), 834, 

834(1), 834(1)(b); 

- Fisheries Act, R.S.C. 

1985, c. F-14, s. 49, 

49(1), 49.1(2), 49.1(2). 

- (1) Did seizing the books without a warrant 

violate s. 8? 

• NO 

- Charter, s.7 and s.8. - (1) Did the records enjoy a reasonable 

expectation of privacy under s.7 of the 


• NO 

- (1) The seizure was properly conducted under the Fisheries Act and was therefore 

not unreasonable. 


- Ref. to Hunter (purpose of s. 8; s. 8 only protects reasonable expectation of 

privacy). 

- (1) The records were made during the development of a program which was 

broadcast. Neither the journalists not the complainants (who were the subject of the 

records) enjoyed a reasonable expectation of privacy in these records. The records 

and communications did not occur in the context of a confidential relationship. 

- Ref. to Plant (contextual approach; core biographical information). 

- Ref. to Hunter (balancing state interest and individual privacy). 


wiretap 

R. v. Spidell 

1996 CanLII 5277 (NS 

C.A.) 

Roscoe J.A.; Clarke 

and Matthews JJ.A. 

(con) . 



by SCC) 


R. v. Fitt 

[1995] N.S.J. No. 83 

- A physician contacted police 

to report that the accused had 

told him that he had been 

involved in a traffic accident, 

had been drinking and that this 

occurred within the past hour. 

- Police went to the hospital 

and demanded that the 

accused provide a blood 

sample. 

-The accused refused and was 

charged with refusal. 

- Video gambling machines 

were kept in a small taxi 

- Charter, s.8. - (1) Was there a violation of s.8? 



• NO 

- (1) Did the presence of the police violate the 

accused’s reasonable expectation of privacy? 

- (1) Although the physician may have breached his duty of confidentiality to the 

patient: 

• it was not demonstrated that there was a reasonable expectation of privacy in 

the information voluntarily provided by the doctor to the police. The physician 

was not acting at the request of, or under the direction of, the police; 

• information provided to the police was not of a private, intimate nature of the 

sort protected by s.8; 


- Ref. to Hunter (purpose of s. 8; protection of people and not places). 

- (1) The search was not unreasonable as there was no expectation of privacy from 

intrusion by the police. 

54


(Judge) 




Reasoning 



Hallett J.A.; Freeman 

and Pugsley JJ.A. 

(con). 

* affirmed SCC 


(Perimeter search) 

(warrantless) 

R. v. MacLennan 

1995 CanLII 4340 (NS 

C.A.) 

Freeman J.A.; Roscoe 

and Chipman JJ.A. 

(con). 

* final level 


R. v. Kouyas 

1994 CanLII 3962 (NS 

C.A.) 

Hallett J.A.; Chipman 

and Freeman JJ.A. 

(con). 



Games Room 

office. 

- Several machines were 

visible from the customer 

waiting area. 

- Police saw them and thought 

they were illegal. 

- They did not have a warrant 

to be on the property. 

- A car was stopped because a 

passenger was not wearing a 

seat belt. 

- Police smelled alcohol. 

- The driver was accompanied 

to the police cruiser and, once 

the officer confirmed the 

accused smelled of alcohol, 

the accused was asked to take 

a breathalyser test. 

- Police entered a public 

games room while 

investigating a complaint 

about rowdy youths who were 

drinking/taking drugs adjacent 

to the games room. 

- While in the games room 

police saw and seized illegal 

gambling machines. 

202(1)(b). 

• NO 


• NO 

- Charter, ss. 8 and 9. - (1) Was the accused’s reasonable 

expectation of privacy violated? 

• NO 

- Charter, s.8. - (1) Was the seizure contrary to s.8? 

• NO 

• the business premises were open to the public and the illegal machines were in 

plain view (see R v. Chang). Furthermore, there was evidence that the taxi stand 

was open to the public and the public could play the games. 

- (2) Since there was no violation of s.8, s. 24(2) wasn’t discussed. 

- Ref. to Hunter (purpose of s. 8; protects reasonable expectation of privacy). 


- (1) The indicia of the accused’s impairment were passive emanations of odour, 

speech and movement. In these circumstances, there was no improper intervention 

by the officer that violated a reasonable expectation of privacy. 

- The accused knew he could be asked to produce his documents if he drove his 

vehicle on a highway, and that in doing so he might be requested to approach a 

police cruiser. Knowing that, he voluntarily consumed the alcohol and then chose to 

drive on a highway. Constables Byrne and Merrell protected Mr. MacLellan, his 

passenger through their alert police work. 

- Ref. to Hunter (s. 8 only protects a reasonable expectation of privacy). 

- (1) There is no reasonable expectation of privacy in public areas of games rooms 

during business hours. 

- There is a reasonable expectation of privacy with regard to non-public areas of the 

business. Although not necessary (given the reasonable expectation of privacy 

finding), the Court considered the plain view doctrine, which permits warrantless 

searches of private possessions if three conditions are met: 

1. police must make a lawful intrusion or properly be in a position to view; 

2. incriminating evidence must be discovered inadvertently (as opposed to 

being known in advance and using the plain view doctrine as pretext); and 

3. it must be immediately apparent “that the items they observe may be 

evidence of a crime, contraband, or otherwise subject to seizure.” 

Facts of this case bring the police officer’s activity within the plain view doctrine. 

- Ref. to Hunter (whether a search is reasonable or not). 

R. v. Patriquen 

[1994] N.S.J. No. 573 

Roscoe, J.A.; 

Chipman, J.A. (con); 

and Pugsley, J.A. 

- Acting on a tip, the police 

saw 100 marijuana plants. 

-Without a warrant, they 

visited the property a second 

time to take photographs. 

- They returned a third time to 



4(2), 6(2), 10. 


expectation of privacy with respect to the land 

on which they were growing marijuana (and 

were their s.8 rights therefore violated? 

• NO 

- (1) The land was secluded and surrounded by woods in a rural area. The 

expectation of privacy on privately-held woodlands is not substantially different 

than that on Crown land (see Boersma). 

- This is because woodlands in rural areas are in some respects subject to inspections 

by members of the public at large. 

- Therefore the accused had no reasonable expectation of privacy and there was no s. 

55


(Judge) 




Reasoning 



(dis). 

* Affirmed SCC 

Home search – 

Perimeter search 

find the respondents watering 

the crop. 

-Police then arrested the 

respondents and seized the 

marijuana plants. 

-There was never any warrant 

to enter onto the land. 


• NO 

8 breach. 

- (2) It was necessary to enter the lands to corroborate the information received and, 

having done that, police then had reasonable and probable grounds to obtain a 

warrant. Police did not do so because they did not understand that it was required 

and there was no evidence of bad faith. Therefore, the evidence should be admitted. 

- The Court adopted an American approach to the privacy expectations in 

information kept by third parties and found that there is no reasonable expectation of 

privacy in computer records of electricity consumption, since the records did not 

contain personal and confidential information. One of the factors taken into account 

in coming to this conclusion was that the records of energy consumption were 

"subject to inspection by the public at large." 

R. v. Brogan 

1993 CanLII 3237 (NS 

C.A.) 

- Records of the accused’s 

hydro consumption were 

obtained under warrant. 


• NO 



- Ref. to Hunter (purpose of s. 8; protects reasonable expectation of privacy). 

- (1) There is no reasonable expectation of privacy in hydro records. 

- Ref. to Plant (facts compared; core biographical information). 

Pugsley J.A.; Clarke 

and Freeman JJ.A 

(con). 

* Final level 


(hydro records) 

ON COURT OF APPEAL 

R. v. D'Silva 

[2006] CarswellOnt 

154 

Doherty, Sharpe and 

Juriansz JJ.A. 

* final level 

- The police conducted a 

warrantless search of the 

accused and found stolen 

goods that had been given to 

him as collateral for a debt. 

- He was charged with 

possession of stolen goods. 


• NO 

- (1) There is no reasonable expectation of privacy with regard to the information 

gathered during the initial warrantless search. Although there was a reasonable 

expectation of privacy regarding an ID number from inside a compartment of one of 

the jet skis, this was not relied on to obtain the search warrant, and as such the 

warrantless search did not intrude on the accused’s reasonable expectation of 

privacy. 


Home 

56


(Judge) 




Reasoning 



R. v. A. M. 


2579 

Armstrong J.A.; 

Goudge and Blair 

JJ.A. (con). 

* final level 

Surveillance - Sniffer 

Dog 

- Police used a “sniffer” dog 

to search a high school 

student’s backback on school 

property. The principal and 

staff were unaware of the 

search. 

- Youth Criminal Justice 

Act; 

- Charter, ss.8 and 24(2). 

- (1) Did the search violate s.8? 

• YES 

- (2) Should the evidence be excluded 

pursuant to s.24(2)? 

• YES 

- (1) The Court refered to Hunter v. Southam: a warrantless search is prima facie 

unreasonable. 

- The dog was found to be a physical extension of the handler (they were 

directly/immediately connected). 

- The Court also refered to Tessling and does not conclude that a dog sniff is not a 

search. The use of a sniffer dog is distinguished from the use of FLIR imaging). 

- A student’s backpack should be afforded the same respect as an adult’s briefcase 

and there is therefore a reasonable expectation of privacy with regard to the contents 

(see R. v. Mohamed). 

- The Court affirmed the trial judge’s decision (Collins test). 

- (2) This constituted a serious breach. “[T]his was a warrantless, random search 

with the entire school body held in detention. It was not authorized by either the 

criminal law or the Education Act and subsidiary school policies. The breach was 

serious. As the trial judge said: To admit the evidence is effectively to strip A.M. 

and any other student in a similar situation of the right to be free from unreasonable 

search and seizure.” 

R. v. Clarke 


1806 

Sharpe J.A.; Simmons 

and Laforme JJ.A. 

(con). 

*final level – SCC 

refused leave to 

appeal 

- Police followed a drunk 

driving suspect into the 

private underground parking 

lot of his apartment building. 

-They then conducted a 

search based on the smell of 

alcohol on the accused’s 

breath. 

- Charter, s.8. - (1) Did the search violate s.8? 

• NO 

- (2) Should the breathalyser evidence be 

excluded? 

• NO 

. 

- (1) If police are entitled to stop a suspect’s vehicle on the street, they are entitled to 

pursue the suspect into his garage. One does not have the same reasonable 

expectation of privacy in one’s parking garage as in one’s dwelling. 

- This reverses the finding of the lower court with regard to both the s.8 violation 

and exclusion. 

- (2) The breathalyser evidence is admissible. 


R. v. Byfield 

[2005] CanLII 1486 

(ON C.A.) 

Rosenberg J.A.; 

Weiler J.A. and Pardu 

J. (con). 

*final level 

- Police observed the accused 

letting a prostitute into his 

vehicle. 

- They then searched him and 

found drugs. 

- Charter, ss.8, 9, 24(2). - (1) Did the search violate s.8? 

• YES 


• YES 

- (1) The search went beyond what was required to mitigate the officer’s safety 

concerns. 

- Iindividuals have a reasonable expectation of privacy in the contents of their 

pockets. 

- (2) The Court reverses the trial judge’s decision (errors: trial judge lacked benefit 

of SCC decision in Mann with regard to reasonable expectation of privacy in 

pockets), although it found that the admission of evidence would not affect the 

fairness of the trial. 

57


(Judge) 




Reasoning 




Body 

R. v. Crompton 

Co./CIE 


5082 

Gillese J.A.; Labrosse 

and Sharpe JJ.A. (con). 

*final level 


R. v. Hudson 


7378 

LaForme J.A.; Borins 

and Juriansz JJ..A. 

(con). 

*final level 


Body 

United States of 

America v. 

McAmmond 

[2005] CanLII 20 (ON 

C.A.) 

Blair J.A.; Laskin and 

Feldman JJ.A. (con). 

* no history 

- The Environmental 

Protection Act (EPA) 

provides provincial officers 

with powers to require certain 

records be provided. 

-This case concerned 

communications regarding a 

pollution spill (400 litres of 

cooling tower water were 

accidentally discharged into a 

creek. A report was 

subsequently released stating 

“No adverse effects are 

anticipated.”) 

- The chemical manufacturer 

refused to provide the 

requested records. 

- The respondent was 

crossing the Canada-U.S. 

border and was asked to 

empty his pockets, which he 

did. 

-Officials found five 

counterfeit $50 bills. 

- Police found the appellant, 

who was involved in a 

fraudulent telemarketing 

scheme, based on wiretapped 

conversations between other 

parties. 

- Environmental Protection 

Act, s. 92, 156, 184. 

- Customs Act, s.98; 

- Charters, ss. 7, 8, 10(b), 

24(2). 

- Extradition Act, s. 29(1); 

- Mutual Legal Assistance 

in Criminal Matters Act, s. 

17, 18, 20; 

- Charter, ss. 24(1) and (2). 

- Appeal dismissed. No discussion of ss. 8 or 

24(2). 


• NO 


• NO (no discussion of s.24(2)) 

- Appeal of order for surrender and 

application for judicial review of decision to 

surrender are dismissed. 

- No discussion of s.8 or s.24(2). 

- In deciding one must consider the seriousness of the breach and the effect of 

exclusion (Collins). 

- S. 156(3) of the EPA requires that a record be made in a manner that does not 

intercept any private communications, in accord with reasonable expectation of 

privacy. 

- s. 156(2) gives provincial officers the power to compel documents/data during a 

physical inspection only. 

- (1) The respondent was familiar with customs inspections. 

- A pocket search is a “non-invasive routine screening procedure” (not strip/skin 

search) and no Charter rights breached. 

- There is a different standard for reasonable searches at the border (see Simmons). 

-The Court therefore overturned the trial judge, who had ruled the pocket search a s. 

8 violation and excluded the evidence. The appeal was allowed and a new trial 

ordered. 

- Ref. to Mann (different standard of privacy than for the general public). 

- (1) There is no reasonable expectation of privacy in conversations other people 

have about you. 

58


(Judge) 




Reasoning 




Wiretap (3 rd party) 

R. v. A.K.1 

[2005] CanLII 11389 

(ON C.A.) 

Moldaver, Gillese, 

Juriansz JJ.A. 

* no history 


R. v. O'Sullivan 


2477 

Weiler, Simmons, 

Gillese JJ.A. 

* no history 


Wiretap 

- Charges of first degree 

murder were stayed because 

the accused had not been 

tried within a reasonable 

period of time, as required by 

s.11(b) of the Charter. 

-The Crown requested the 

production of 17 autopsy files 

from the Coroner’s Office. 

- It was argued that third 

party privacy interests ought 

to be considered. 

- Police searched an 

apartment frequented, but not 

owned by, the appellant. 

-The appellant had invited 

police in. 

- Privacy Act, s. 2(1). - The trial judge was correct in finding that 

the respondents’ right to be tried within a 

reasonable time had been breached. Appeal 

dismissed. 

- Charter (referred to 

generally). 

- NO discussion of s.8 or s.24(2). 

- Crown possession/control (of records) is not to be equated with a violation of 

reasonable expectation of privacy (see R. v. Mills). 

- NO direct discussion of s.8 or s.24(2) - (1) The appellant had no reasonable expectation of privacy in the apartment, even 

though he sometimes stays overnight. 

- The fact that the police were invited in negates a claim based on reasonable 

expectation of privacy. 

R. v. Campanella 

[2005] 196 O.A.C. 188 


Simmons and Lang 

JJ.A. (con). 

* no history 


Body 

- The accused’s purse was 

searched at a security 

screening point at the 

entrance to a provincial 

courthouse. 

- Signs at the public entrances 

inform that visitors will be 

searched and warn of the 

ramifications of possessing 

illegal articles. 

-The accused had been 

through the screening process 

on previous occasions. 

- The purse was voluntarily 

submitted for a manual 


Substances Act, s. 4(1); 

- Public Works Protection 

Act, s. 3(b); 

- Police Services Act, s. 

137; 

- Charter, s. 8. 

- (1) Did the search violate s.8 of the Charter? 

• NO 


• NO (although there was no ruling on 

s.24(2), there was a discussion of 

exclusion generally, favouring admitting 

the evidence). 

- (1) When entering prominent public buildings there is a reasonable expectation of 

being searched and the appellant was familiar with procedure. 

- There was no evidence that the search was conducted in an unreasonable manner, 

or for a purpose unrelated to courthouse security. 

- (2) In balancing the interests, note that notice was given on a sign at entrance 

which said that one can refuse to be searched and leave. Alternately, one can transfer 

non-metallic objects from searchable hand-baggage to a pocket that will not be 

searched. 

- Ref. to Hunter v Southam (“reasonableness” to assess constitutionality). 

59


(Judge) 




Reasoning 



R. v. Blais 

[2004] 181 O.A.C. 81 


Weiler and Borins 

JJ.A. (con). 

* final level 


Property 

R. v. Mohamad 

[2004] 181 O.A.C. 201 

Cronk J.A; Laskin 

and Moldaver JJ.A. 

(con). 

* final level 

Property – Vehicle 

(Personal Property 

inside) 

R. v. Major 

[2004] 188 O.A.C. 159 


Laskin and Aitkin 

JJ.A. (con). 

* final level - SCC 

leave to appeal 

dismissed 

search because it would have 

set off the metal detector. 

- A small quantity of 

marijuana was found and the 

accused was arrested. 

- Following arrest and 

incarceration, Blais’ personal 

belongings were seized. 

- The belongings were 

searched twice by detectives. 

- A key that was among the 

possessions was later seized 

under warrant. 

- A suspicious vehicle at 

customs led to the search of 

another vehicle. 

-The other vehicle, unlocked 

and stolen, contained an 

unlocked briefcase nd this 

was searched. 

- Heroin and marijuana were 

found in a “family visit unit” 

trailer within a penitentiary. 

-The seizure led to a charge 

of possession with intent to 

traffic. 

- Correctional Services 

provide the trailers to afford 

privacy). 

- Criminal Code, s. 186(2); 



4(3)(b); 738(1)(a); 



Constitutional Release Act, 

S.C. 1992, c. 20 s. 52, 58; 

- Charter, ss. 7, 8, 24(2). 

- (1) Did the search violate s.8 of the Charter? 

• NO 


• NO 


• NO 

- (2) No discussion of s.24(2). 

- (1) Did the search and seizure violate s.8? 

• YES 

- (2) Should the evidence be excluded per 

s.24(2)? 

• NO 

- (1) The search warrant was obtained appropriately. The appellant’s expectation of 

privacy was that the state would preserve the goods and return them upon the 

appellant’s release. 

- One’s reasonable expectation of privacy is greatly reduced in belongings that have 

been seized by police (see Grant). 

- Ref. to Edwards (factors to consider for reasonable expectation of privacy). 

- (2) – The search was conducted in good faith: the officer was attempting to comply 

with the law. 

- (1) There is as lesser expectation of privacy (of the physical person) in a car than in 

one’s home/office (R. v. Caslake). 

- Owners of briefcases generally have a reasonable expectation of privacy in the 

contents of their briefcases - even if the briefcase is stolen. 

- Thus, the requirements for a valid search of the briefcase were met. 

- Ref. to Hunter v Southam (purpose of s.8). 

- Ref. to Edwards (“contextual analysis of the totality of the circumstances”). 

- (1) Although there is a reduced expectation of privacy in a prison setting, there was 

a subjective expectation of privacy in the units. They were locked, were for the 

purpose of sleeping, and children were present. The subjective expectation was 

judged objectively reasonable (see Conway v. A-G of Canada). 

- The trial judge had considered the unit a “cell”, and privacy is therefore subject to 

the terms of the prison’s legislation. 

- (2) However, drug trafficking is a very serious offence and admitting the evidence 

would not affect the fairness of the trial. 

Prison – Surveillance 

R. v. Serendip 

Physiotherapy Clinic 

- A physiotherapy clinic was 

trying to defraud an insurance 


- Charter, ss.7 and 8. 

- Ref. to Edwards: (what constitutes a reasonable expectation of privacy” on “the 

totality of the circumstances”). 

- (1) Did the search and seizure violate s.8? - (1): Serious intrusions into privacy are justified if there are reasonable grounds that 

the records sought will afford evidence about the commission of the offence. 

60


(Judge) 




Reasoning 



[2004] 192 O.A.C. 71 


Armstrong and Blair 

JJ.A. (con). 

* final level - SCC 


refused 


withheld 

R. v. Tessling 

[2003]168 O.A.C. 124 

Abella J.A.; O’Connor 

A.C.J.O and Sharpe 

J.A. (con). 

*reversed SCC (leave 

to appeal) 

Property – Home; 

Surveillance – FLIR 

company and was not 

providing all the necessary 

records. 

- Health records were seized 

by police who were seeking 

allegedly fabricated and 

falsified information. 

- On the strength of 

information gained from two 

informants, police used FLIR 

technology to obtain a 

thermal image of the home of 

the accused. 

• NO 


- Charter, ss.8 and 24(2). - (1) Did the search and seizure violate s.8? 

• YES 


• YES 

- The Application Judge noted the universal concern for privacy with regard to 

health records. 

- S.487 of the Criminal Code balances private/public rights. 

- It was not confidential health information that was sought, but evidence of fraud. 

- Ref. to O’Connor (reasonable expectation of privacy re records held by 3 rd 

parties). 

- Ref. to Dyment (serious nature of intrusion into health record). 

- Ref. to Hunter v. Southam ((in Dyment) where it’s feasible to obtain prior 

authorization, such authorization will be considered a pre-condition). 

- (1) The appellant had a reasonable expectation of privacy in activities carried on 

within his residence. FLIR violated this expectation. No reasonable expectation of 

privacy exists for heat emanating from a home, but here the information revealed 

activities within the house. 

- Ref. to Edwards (two-step s.8 test). 

- Ref. to Plant (no reasonable expectation of privacy re records held by a third pary; 

core biographical information; electricity consumption records fall outside this 

protection and are accessible to the public). 

- Ref. to Kelly (reasonable expectation of privacy from low-level aerial 

surveillance). 

- Ref. to Hunter v Southam ((in Evans) s.8 applies where a reasonable expectation 

of privacy has been diminished by an investigatory technique). 

- (2) The FLIR technology revealed activities inside the home beyong what would 

be detectable by normal observation or surveillance. 

- The search warrant was not lawfully obtained. 

- This will enhancee public confidence. 

144096 Canada Ltd. 

v. Canada (Attorney 

General) 

[2002] 168 O.A.C. 201 

Morden J.A.; Borins 

and Simmons JJ.A. 

(con). 

* no history 

- Six aircraft were in storage 

temporarily “for the winter”. 

- Canada Customs seized and 

stored the six aircraft and 

later another, on the basis of a 

breach of the Customs Act. 

- The appellant alleges that 

the aircraft were damaged 

while improperly stored. 

- Customs Act, s. 106(1) 

(any action must be 

brought within 3 months), 

a.129 (challenge to 

seizure); 

- Crown Liability and 

Proceedings Act, s.3(b); 

- Charter, s.8. 

- (1) Did the seizure violate s.8? 

• NO 


- Ref. to Kyllo v. US. 

- (1) There was no material on record to support a reasonable expectation of privacy. 

- The action commenced two years after the incident but the limitations period 

would actually have begun after the action was commenced (not from date of seizure 

but from date of the end of storage). 

- Appeal allowed (except Charter issues dismissed). 

- Custom Officer’s malice and intent to injure bring issue outside scope of a.106(1). 

61


(Judge) 




Reasoning 



Property Search 

R. v. Anderson 

[2002] 155 O.A.C. 216 

Cronk J.A.; Moldaver 

and Feldman JJ.A. 

(con). 



appeal 

- Several years’ worth of he 

respondent’s personal 

journals were seized. 

- The seizure was under 

warrant. 

-The journals were used 

against the respondent on 

sexual assault and weapons 

charges. 


686(4)(b)(i); 

- Charter, ss. 7, 8, 11(c) 

and (d). 


• NO 

- (2) No ruling under s.24(2) as respondent 

did not seek to have journals excluded on s.8 

grounds. 

- (1) Reasonable expectation of privacy re journals wasn’t argued. The focused was 

on the s.7 argument. S. 8 issues may be brought up in a new trial. 

- (2) Appeal allowed. Acquittals set aside and new trial ordered. 


R. v. Dore 

[2002] 162 O.A.C. 56 

Feldman J.A.; 

Doherty and Simmons 

JJ.A. (con). 

* no history 


Home (not owner) 

R. v. B. (E.) 

[2002] 154 O.A.C. 167 

Cronk J.A.; Moldaver 


(con). 

* final level – SCC 


refused 


with rape and his fingerprints 

were taken at the scene of the 

crime. 

- The fingerprints were 

retained in the police system 

even though the rape charges 

were withdrawn. 

- The accused’s diary was 

used as evidence in a sexual 

assault case. 


Criminals Act, s. 2(1); 

- Criminal Code, ss. 278.1- 

278.91, ss. 278.3(1) and 

(2); 

– Charter, s.8. 

- Criminal Code, s.278.3, 

s.278.1-278.91; 

- Charter, s. 8. 

- (1) Did keeping the fingerprints on file 

violate s.8? 

• NO 

- (2) No need to consider s.24(2). 

- (1) Did using the diary violate s.8? 

• YES 


- (1) Fingerprinting is an invaluable tool of criminial investigation. 

- A significant loss of personal privacy is to be expected when arrested for a serious 

crime on reasonable and probable grounds (Hunter v. Southam). 

- Anything associated with one’s body, especially where not normally accessible, is 

of a personal and confidential nature. 

- The practice in other common law countries reflects a recognition that an acquitted 

person may retain an interest in maintaining the privacy of their fingerprint 

information (Scotland; New Zealand; Tasmania; some states in the US). 

- Ref. to Plant (core biographical information; contextual factors to consider). 

- (1) According to s. 278.1 of the Criminal Code, personal journals and diaries are 

“records” containing personal information for which there is a reasonable 

expectation of privacy (legislative response to O’Connor). 

- This reasonable expectation limits the scope of permissible questioning but 

doesn’t preclude all questioning regarding the diary. 

- Ref. to Plant (diaries reveal intimate details of life/choice). 

- Ref. to Mills (unsuccessful use victom’s psychiatric records in a sexual assault 

case). 


R. v. D'Amour 

2002 CanLII 45015 

(ON C.A.) 

Doherty J.A.; Carthy 

- The accused was receiving 

welfare while actually 

working. 

-By not informing the welfare 

authorities, she was 

- Charter, ss. 7, 8, 11(c), 

13, 24(2); 


- (1) Did police obtaining the documents 

violate s. 8? 

• NO 

- (1) The s. 8 claim failed as D'Amour had no reasonable expectation that the 

Department would not co-operate in the criminal prosecution of an allegation of 

fraud against the Department, and that the documents would be provided to police in 

such an investigation. 

62


(Judge) 




Reasoning 



and Laskin JJ.A. (con). 

* final level 



R. v. Hurrell 

[2002] 161 O.A.C. 248 

Moldaver J.A.; Cronk 

and Gillese JJ.A. 

(con). 

*leave to appeal 

allowed – SCC 


Home 

committing fraud. 

- The department asked for 

T4 slips and police then 

obtained these documents. 

- A search warrant was 

executed at the appellant’s 

home and weapons and 

ammunition were seized. 


117.04(1); 

- Charter, ss.7, 8, 24(2). 


• NO 


• YES 

- (2) No ruling on s. 24(2). 




- (1) The Charter is to be interpreted in light of the context in which a claim arises 

(Wholesale Travel). 

- The approach by McLachlin in Winko is useful here: the less of a threat one is to 

society, the less authority the criminal law has to restrict one’s liberty in the name of 

protecting public safety. 

- s. 177.04(1) needs a constitutional overhaul. Ref. to Hunter v. Southam 

(information given on oath). 

- Do police have too much discretion under s. 177.04(1) in deciding when to invade 

an individual’s reasonable expectation of privacy? 

- The requirement for reasonable grounds to exist and be presented was lacking. 

R. v. Dhillon 

[2002] 161 O.A.C. 231 

Laskin and Gouge 

JJ.A.; Weiler J.A. 

(con). 

* no history 

- Following an improper 

photographic lineup, an 

eyewitness testified about a 

gunman. 

- Cell-mate testimony 

corroborated a confession. 


686(1)(b)(iii). 

- No discussion of s.8 or s.24(2) of the 


- (2) The search warrant was quashed and seized items returned of seized items. 

- A new trial was ordered (based on an error in instructions about the evidence). 

- There was a reasonable expectation of privacy regarding the appellant’s 

communication with his cell-mate. 

Identity – Photo 

R. v. Briggs 

[2001] 149 O.A.C. 244 

Weiler J.A.; Austin 

and Borins JJ.A. (con). 



appeal 


DNA Sample 

- Police got an order to take a 

DNA sample from the 

accused. 

- What is the reasonable 

expectation of privacy in an 

offender’s DNA profile? 


487.04, 487.052, 

487.07(3); 

- Charter, ss.1, 7, 8, 24(2). 

- (1) No direct discussion of s.8 or s.24(2). 

Reasonable expectation of privacy was 

discussed in relation to s. 7 of the Charter. 

- Appeal dismissed. 

- (1) Different reasonable expectations of privacy are afforded to a suspect not 

charged vs. a person arrested and charged vs. a person convicted vs. a person subject 

to a custodial sentence. 

- People have a reasonable expectation that samples taken will only be used for the 

purposes for which they are given. Use for a different purpose violates s. 8. 

- In deciding to make an order, consider: the existence of a criminal record; the 

nature of the offence; circumstances surrounding commission; the impact on 

privacy; and security of the person. 

- S. 487.07(3) of the Criminal Code: taking of samples is to be done in a manner that 

respects the offender’s privacy and is reasonable in the circumstances. 

- Ref. to Stillman (reasonable expectation of privacy breached with DNA sample, 

accused not convicted). 

63


(Judge) 




Reasoning 



R. v. Tran 

[2001] 149 O.A.C. 120 

Borins J.A.; Weilder 

and Austin JJ.A. (con). 

* no history 


Blood Sample 

R. v. Inco Ltd. 

[2001] 146 O.A.C. 66 

McMurtry C.J.O.; 

Laskin J.A. and Blair 

R.S.J. (con). 



appeal 

- Following an accident, the 

accused was taken to hospital 

where he consented to 

providing blood samples for 

medical purposes but not for 

a criminal investigation. 

- Police obtained the samples 

without a warrant. 

- Employees were compelled 

to submit to questioning and 

to produce documents and 

other material regarding their 

employer’s polluting 

practices. 

- Criminal Code, ss.255(3), 

(2) and (1); 

- Charter, ss.7, 8, 11(b),(d), 

24(2). 

- Ontario Water Resources 

Act, s. 15, 19(1), 20(2), 

30(1) and (2); 

- Provincial Offences Act, 

s. 120; 

- Charter, ss. 7, 8, 9, 10(b), 

11(d). 

- (1) Did the seizure violate s.8 of the Charter? 

• YES 


• YES 

- Did the compulsory gathering of documents 

infringe employees’ reasonable expectation of 

privacy? 

• Inco lack standing for a claim for relief 

regarding the s. 8 argument. 

• No ruling on s.8, no discussion of s.24(2). 

- Ref. to Hunter v. Southam (“reasonableness” of reasonable expectation of 

privacy; high reasonable expectation of privacy regarding bodily integrity). 

- Ref. to Dyment (social value in retaining information about oneself; use of 

information must conform with the purpose of collection). 

- (1) There was no warrant to obtain a blood sample under s. 256(1) Criminal Code. 

- The SCC has found that a reasonable expectation of privacy exists for hospital 

patients undergoing treatment for injuries sustained in an automobile accident and 

for blood analysis results, so long as the blood was collected for medical reasons 

was results were not to be shared with non-medical personnel. 

- (2) The blood samples were used for non-medical purposes without consent so the 

appeal is allowed and the convictions for impaired driving are set aside. 

- Ref. to Dyment (information about blood collected for medical reasons may not be 

share with non-medical personnel without consent). 

- In Comite Paritaire v. Potash, LaForest held that constitutional guarantee of s. 8 

varies depending on whether a “search” or an “inspection” is at issue. 

- The abuse of process appeal is allowed. 

- Ref. to O’Connor. 


R. v. S. (G.) (R. v. 

Sutherland) 

[2001] 146 O.A.C. 53 

Laskin J.A.; 

Finlayson and 

Labrosse JJ.A. (con). 



appeal 


R. v. Adams 

2001 CanLII 16024 


with the sexual assault and 

assault of his wife. 

- Both the accused and his 

wife were mentally 

challenged persons. 

- The wife had gone to a 

support worker for help and 

counselling. 

- The accused wanted access 

to the counselling records. 

- The accused was arrested in 

the laundry room of a 

- Criminal Code, ss. 761 

and s.718.2(e). 

- Charter, ss. 7 and 12. 



- Appeal against convictions and sentence is 

dismissed. 


- (1) Did the search and seizure violate s. 8 of 

the Charter? 

- A person may have a privacy interest in a record though it is not made for a 

therapeutic purpose and even if it is in the Crown’s possession. 

- The appellant’s argument turns on the adequacy or the allocation of resources 

within the federal correctional system. The court is without adequate record to 

decide this constitutional question, so there is no ground for the appeal. 

- (1) The accused had a reasonable expectation of privacy in the laundry room of the 

house where he was staying even if he wasn’t the owner of the house. 

64


(Judge) 




Reasoning 



(ON C.A.) 

Carthy J.A.; Charron 

and McCombs JJ.A. 

(con) 

* final level 

rooming house. 

- Police entered without a 

warrant and found drugs on 

him. 

529.3. 

• YES 


• YES 

- The police therefore needed a warrant to validly enter the house. 

- Ref. to Mellenthin 


(without warrant) 

R. v. Sutherland 

[2000] 139 O.A.C. 53 

Carthy J.A.; Abella 


(con). 

* no history 


(Perimeter search) 

R. v. Mulligan 

2000 CanLII 5625 

(ON C.A.) 

Sharpe J.A.; Laskin 


(con). 

* final level 


R.v. B.P. 

[2000] 137 O.A.C. 66 

Weiler, Rosenberg, 

Sharpe, JJ.A. 

* no history 

Prison 

R. v. Lauda 

[1999] 121 O.A.C. 365 


accused’s apartment at night. 

-The warrant had been issued 

based on false information. 

-He was believed to have 

stolen watches and rings. 

- The accused was drunk in 

his truck on his own property 

when police found him and 

arrested him for drunk 

driving. 

- The accused resisted arrest. 

-The accused was charged 

with a number of sexual 

assaults that occured over 

decades. 

- He wanted the Children and 

Family Services records of 

one of the complainants 

because it supports his claim 

of innocence. 

- The police entered an 

unused private cornfield, 

- Criminal Code, ss. 488 

and 487 (warrant by day); 

- Charter, ss. 8 and 24(2). 


24(2). 


686(1)(b)(iii); 761; 

718.2(e); 278.3. 


Substances Act, s. 29; 


• YES 


s.24(2)? 

• YES 

- (1) Was the vehicle search an arbitrary 

detainment and did it violate the accused’s 

reasonable expectation of privacy? 

• NO 


• NO 

- (1) Would requiring production violate the 

complainant’s privacy rights? 

• NO 

-No discussion of s.8 or s.24(2). 

- (1) The Criminal Code imposes special requirements when a search by night is 

contemplated. No additional justification for a night search exists here: there is 

likely no time sensitivity regarding recovery of the goods. Based on a “totality of the 

circumstances”, the warrant is invalid. 

- (2) The search of a dwelling house must be undertaken with responsibility 

appropriate to a place where the highest degree of privacy is expected. 

- Applied Collins. 

- (1) It is plainly in the interests of a property owner or occupant that the police 

investigate suspected crimes being committed against the owner or occupant. 

- Before the search the police arrested the accused with just cause (drunk driving) 

and the accused therefore had lowered reasonable expectation of privacy when he 

was searched. 


- Ref. Edwards (totality of circumstances test). 

- Ref. Hunter (purpose of s. 8). 

- The appeal from the conviction was allowed and a new trial ordered. 

- At the new trial, the appellant may be able to argue that there is no reasonable 

expectation of privacy in the information contained in the records. 

- (1) Did the search and seizure violate s.8? - (1) One must consider steps taken to protect the property against unwelcome 

intrusion. 

65


(Judge) 




Reasoning 



Moldaver J.A.; 

Osborne A.C.J.O and 

Rosenberg J.A. (con). 

* no history 


Home 

which was gated and fenced, 

without a warrant. 

- They seized marijuana from 

the cornfield. 


- Trespass to Property Act, 

ss.2 (1)(a)(i) and (ii); (b); 

3(1) (a) and (b); 


• YES 


s.24(2)? 

• NO 

- The rights of a property holder to be free from police intrusion can be restricted 

only by powers granted in clear statutory language. 

- An “open field” is different from a private dwelling (see R. v. Patriquen). 

- Property holders have an expectation of privacy in unoccupied lands. They have 

the right to exclude the public from their property even where visible to public. 

- (2) After balancing the severities, the marijuana must be admitted, but evidence 

taken from the home is to be excluded. 

-Admitting the evidence won’t affect the fairness of the trial. 

R. v. Lauda 

[1998] 106 O.A.C. 161 

Borins J.A.; 

McMurtry C.J.O. and 

Abella J.A. (con). 



Home 

R. v. Nicolosi 

[1998] 110 O.A.C. 189 

Doherty J.A.; Brooke 

and Charron JJ.A. 

(con). 

* final level 


Corp.of the Canadian 

Civil Liberties Assn. 

v. Canada (A-G) 

[1998] 111 O.A.C. 51 

- Police received informant 

information (an aerial 

photograph) that unused 

farmland was being used to 

grow marijuana. 

- This led to subsequent 

inspection of the land without 

a search warrant and visual 

surveillance for 5 days. 

- Cannabis and marijuana 

cultivation was found. 

-At trial the accused was 

acquitted when the evidence 

was excluded. 

-The Crown appeals. 

- As part of a routine search, 

police impounded and then 

searched an unlicensed motor 

vehicle. 

- An unregistered gun was 

found and then seized. 

- CSIS surveillance 

techniques used to investigate 

“activities” that are “threats 

to the security of Canada”. 


487.01. 


- Highway Traffic Act, ss. 

221 (1) and (2). 


- Cdn Security Intelligence 

Service Act. ss. 12, 21, 26; 

- Charter, ss.7, 8. 


• YES 


• NO 


• NO 


• NO 

- Appeals dismissed and cross-appeal allowed. 


- Ref to Edwards (factors to apply to establish a reasonable expectation of privacy - 

surrounding circumstances). 

- (1) The trial judge found that a trespasser has a reasonable expectation of privacy 

while cultivating a property. 

- According to s.24(2), appellate courts owe deference to lower courts on 

admissibility of evidence decisions (R. v. Grant) 

- (2) The trial judge erred in excluding the ecidence under s24(2). He failed to 

sufficiently consider the relevant factors as laid out in Collins (police surveillance as 

‘least intrusive type of search’; not a private dwelling; plants visible from aerial 

view or people using the farm). 


- (1) The reasonableness of police conduct is judged based on the circumstances. 

- The fundamental importance of licensing in regulating motor vehicles legitimizes 

state power to remove all improperly licensed vehicles from the roadway. Police 

conduct therefore fell within the statute. 

- Ref. to Edwards (totality of the circumstances). 

- Ref. to Collins (facts applies; search is constitutional where authorized by law and 

both the law and the search are reasonable). 

66


(Judge) 




Reasoning 



Charron, J.A.; Abella 

and Austin JJ.A. (con). 



appeal 

Surveillance 

R. v. Laurin 

[1997] 98 O.A.C. 50 

Morden A.C.J.O.; 

McKinlay and Laskin 

JJ.A. (con). 

* no history 

Surveillance – Visual 

R. v. Noseworthy 

[1997] 100 O.A.C. 76 

Austin J.A.; 

McMurtry and 

McKinley JJ.A. (con). 

* final level 


(Warrant) 

- Police received a phone call 

tip regarding marijuana 

cultivation. 

- Police surveiled the house 

from outside locations close 

to the appellant’s basement 

apartment, and observed 

visual and olfactory evidence 

of cannabis cultivation, 

which led to a conviction for 

cultivation and possession. 

-The appellant seeks to 

determine whether the police 

observations were a 

warrantless search. 

- A search warrant for the 

accused’s home was issued 

under s.487, the judicial 

power to issue an anticipatory 

search warrant. 

-Many items were seized. 

- Narcotics Control Act, ss. 

6(1) and 3(1); 


- Criminal Code, s. 487.01. 



• YES 


• NO 


• NO 

- (1) With regard to the appellant’s side yard, the appellant had no right to exclude, 

but officers had no right to be there. 

- The appellant’s reasonable expectation of privacy was infringed by police because 

they had no right to be on the property and make observations through the window 

from 2 inches away. 

- There is no reasonable expectation of privacy regarding smells emanating from 

one’s apartment into the hallway. 

- The court referred to an American case which found a diminished expectation of 

privacy of residents of multiple occupancy dwellings (La Fave, U.S.). 

- (2) There are three broad categories for exclusion (Collins). 

- The justice system is brought less into disrepute by admitting the evidence than 

excluding it. 

- Ref. to Hunter v. Southam (objective of s.8). 

- Ref. to Plant (cultivation of marijuana is a serious offence). 


- Ref. to Kokesch (where a warrant is obtained through a Charter violation, the 

evidence can be excluded under s.24(2). 

- Under s.487.01(4), where a reasonable expectation of privacy exists, a judge 

issuing a warrant is to impose terms and conditions to ensure respect of privacy “as 

much as possible”. 

-The Court determined that the trial judge’s narrow interpretation of the 

authorization of anticipatory search warrants in s.487.01 is inconsistent with the 

purpose and legislative scheme of the provision: “Parliament intended in s. 487.01 to 

create a flexible power that would be available in a broad range of investigative 

circumstances provided that: 

(a) the Hunter v. Southam reasonableness criteria are met; 

(b) granting an order is in the best interests of the administration of justice; 

(c) interference with bodily integrity is not permitted; and 

(d) no other provision can be used to authorize the order.” 

67


(Judge) 




Reasoning 



R. v. Pelland 


965 

Catzman, Labrosse 

and Moldaver JJ.A. 

* no history 

- Police made a secret voice 

recording of the accused 

while he was detained and 

used it for voice 

identification purposes. 

- Criminal Code, ss. 278.1, 

278.2., 509 and 699; 


- (1) Did the recording violate s.8? 

• NO 


• NO 

- Ref. to Hunter v. Southam (reasonableness criteria). 

- Ref. to Wong (video surveillance offensive without prior judicial approval). 

- Ref. to Plant (s.487 parallels s.8 protection of information privacy interests). 

- (1) The voice is a physical characteristic. The voice sample was therefore 

innocuous and did not implicate the appellant in criminality. 

- There is no reasonable expectation of privacy in the sound of one’s voice. 

- (2) The accused didn’t object to having this evidence admitted at trial so he can’t 

try to exclude it on appeal. 


R. v. Monney 

[1997] 105 O.A.C. 1 


Morden J.A. (con); 

Weiler J.A. (dis). 

*reversed - SCC 


Body, Urinalysis 

- The accused was detained at 

the airport upon re-entry into 

Canada because he was 

suspected of having 

swallowed narcotics. 

- Officers were unaware of 

the correct procedure for 

dealing with people who have 

swallowed narcotics. 

- The accused was strip 

searched and consent to 

provide a urine sample was 

coerced through the threat of 

continued detention. 

- Customs Act, s. 98; 


24(2). 

- (1) Did the strip search violate s.8? 

• YES 


• YES 

- (1) The strip search was not authorized by s. 98 because it was not conducted 

within a reasonable time. 

- Where a detention is unlawful, so too is a resulting seizure (here the urine). 

- Grounds to arrest must exist in order to justify such an intrusion and interference 

with a traveller’s liberty and reasonable expectation of privacy. 

-According to LaForest in Wong, the question is not whether a person who 

swallows drugs to smuggle them can expect to be detained for a lengthy period, but 

whether a traveller to Canada can reasonably expect a lengthy detention and close 

monitoring of bodily functions. The reasonable expectation of privacy remains at a 

level above this even when reduced due to border issues. 

- Dissent (Weiler): One’s reasonable expectation of privacy regarding a urine 

sampling is not different from that regarding a frisk search (Gibs in Fieldhouse). 

- (2) Because of the seriousness of the violations, the evidence is to be excluded. 

R. v. Joyce (R v. 

Kennedy) 

1996 CanLII 3040 

(ON C.A.) 


accused’s garbage because he 

matched the description of a 

murder suspect. 

- Charter, ss. 7, 8. - (1) Did the search violate s. 8 of the 


• NO 

- Ref. to Collins (conditions for a reasonable search per Lamer). 

- (1) The accused had no reasonable expectation of privacy with respect to his 

abandoned garbage. 

Morden J.A., Weiler 

J.A. and Rosenberg 

J.A. 

* final level 


68


(Judge) 




Reasoning 



(without warrant) 

R. v. Belnavis 

1996 CanLII 4007 

(ON C.A.) 

Doherty J.A.; 

Osbourne and Austin 

JJ.A. (con). 

*Affirmed SCC 


- The accused was driving a 

car with a U.S. license plate 

and was speeding. 

- Police pulled the car over 

and found garbage bags full 

of stolen goods. 

- The accused was arrested 

based on a warrant for 

outdtanding traffic fines. 

- Charter, ss. 8 and 24(2). - (1) Was the vehicle search an arbitrary 

detainment and did it violate s.8? 

• YES 


• NO 

- (1) Belnavis had a reasonable expectation of privacy with respect to the vehicle 

and the search was therefore not authorized by law. 

- Belnavis' arrest on a warrant for the outstanding traffic fines justified her continued 

detention and could have justified the towing of the vehicle back to the police 

station. It could not, however, justify a search of the vehicle, since a search could 

only be said to be incidental to an arrest if it served some purpose connected to the 

arrest. 

- (2) There was no element of self-conscription in the procural of the material from 

the car. The material pre-existed the Charter breach and did not emanate from 

Belnavis. 

- Belnavis was lawfully detained throughout. 

- The admission of this evidence did not render the trial unfair, even if it was 

obtained based on an unconstitutional search. 

R. v. Maffei 

1994 CanLII 300 (ON 

C.A.) 

Brooke, Finlayson 

and Austin JJ.A. 

* final level 


person – Blood 

Samples 

R. v. Edwards 

[1994] 88 O.A.C. 321 

McKinlay J.A.; 

Finlayson J.A. (con); 

Abella J.A. (dis). 



- The accused caused a fatal 

car crash. 

- He was taken to hospital 

and, while there, a doctor 

took a blood sample. 

- Police seized the samples 

and used them as evidence 

against the accused. 

- The police searched the 

home of a suspect’s 

girlfriend. 

- They seized drugs and 

arrested the girlfriend. 

-The suspect (the appellant) 

was driving with a suspended 

license and was later arrested. 

- Without a warrant, police 

- Charter, ss. 8, 24(2). - (1) Did the police’s taking of the blood 

sample violate s. 8 of the Charter? 

- Narcotics Control Act, s. 

4(2). 


24(2). 

• NO 


• NO 

- (1) Did the seizure of the phone/pager 

violate s.8? 

• NO (with regard to the appellant, but the 

girlfriend has standing to challenge). 

- (2) Should the evidence (drugs in the 

apartment) be excluded? 

- Ref. to Kokesch (police must act in good faith when conducting a search). 


- Ref. to Hunter (s. 8 protects reasonable expectation of privacy; a warrantless 

search is presumed to be unreasonable). 

- (1) The blood sample came into existence for legitimate medical purposes and, as 

such, was real evidence that existed prior to, and irrespective of, the subsequent 

seizure and resulting Charter breach. 

- (2) The police officer acted conscientiously and in good faith in pursuing his 

investigation and any breach of the appellant's Charter rights was inadvertent. 

- The administration of justice is not brought into disrepute by admitting into 

evidence the test results of the blood samples. 

- (1) The existence of a reasonable expectation of privacy depends on a contextual 

analysis of the totality of the circumstances. 

- The Court supports the trial judge’s finding of reasonable and probable grounds to 

arrest the accused for drug possession. (The trial judge found a violation of the 

girlfriend’s rights, but not of those of the appellant since he had no reasonable 

expectation of privacy in his girlfriend’s apartment). 

- Dissent (Abella): There is a s.8 violation and the evidence should be excluded. The 

couple’s three year relationship affords the appellant a reasonable expectation of 

69


(Judge) 




Reasoning 



(not owner) 

R. v. Silveira 

[1994] 69 O.A.C. 296 

Griffiths J.A.; Carthy 

J.A. (con); Abella J.A. 

(dis). 

*affirmed - SCC 


Home (garage) 

R. v. Wijesinha 

[1994] 66 O.A.C. 356 

Galligan J.A.; 

Goodmann and Abella 

JJ.A. (con). 

* affirmed - SCC 

seized and monitored a cell 

phone/pager found in the 

girlfriend’s car. 

- Police conducted 

surveillance of the appellant, 

who was suspected of drug 

trafficking, for several days. 

- Because they feared 

evidence would be destroyed, 

police entered the appellant’s 

family home without a 

warrant, in violation of his 

reasonable expectation of 

privacy. 

- The accused was then 

charged with drug trafficking 

and possession. 

- The accused was a lawyer, 

and was surveilled by a 

police informant wearing a 

bodypack recorder. 

- Narcotics Control Act, s. 

10; 

- Charter, ss. 7, 8, 9, 10(b). 


139(2), 183; 


• NO 

- Did the search and seizure violate s.8? 

• YES 


• NO 

- (1) Did the recording violate s.8? 

• YES 


• NO 

privacy in the girlfriend’s house and he had his own key. 

- Ref. to Hunter v. Southam (“reasonableness” in s.8 protection). 

- (1) Police entered the residence uninvited and without a warrant), therefore the 

initial entry was a trespass. 

- (2) The warrantless search was of little detriment to the appellant. 

- Ref. to Kokesch (factors re admissibility of evidence: manifest culpability of the 

appellant and a low level of intrusion into reasonable expectation of privacy). 

- Dissent (Abella): The evidence should have been excluded under s. 24(2) because 

there was a high reasonable expectation of privacy. Police are to be allowed strategic 

latitude but not where lawful alternatives are available (enough information existed 

to obtain a search warrant much earlier). 

– Ref to Hunter v. Southam (it is rare for individuals to have a low reasonable 

expectation of privacy). 

- (1) The Court referred to LaForest J. in Duarte: in microphoning conversations, 

reasonable expectation of privacy turns on whether the speaker spoke in 

circumstances where it was reasonable to expect their words would only be heard by 

the persons being addressed. 

- Given that the appellant is a former Crown Attorney, he would have a reasonable 

expectation that police officers would not participate in unlawful activities, 

suggesting s. 8 may not apply at all 


Recorder 

SC of PEI – APPEAL DIVISION 

Dyne Holdings Ltd. 

v. Royal Insurance 

Company of 

Canada 

[1996] 135 D.L.R. 

(4th) 142 

Carruthers 

C.J.P.E.I.; Mitchell, 

- An insured company sought 

a declaration that it was 

entitled to have its insurers 

defend it in an action 

commenced by a third party. 

- According to the insured, 

the statement of claim alleges 

the plaintiff suffered personal 

injury arising out of oral or 

- Prince Edward Island 

Rules of Court, 1990, Rule 

61.05(1)(c), 61.05(3). 

- No ruling on s.8 or 24(2). - Ref. to Hunter v. Southam (the existence of a right to privacy consisting of the 

right to be let alone and to be secure against encroachment upon one’s reasonable 

expectation of privacy). 

- Ref. to O’Connor (there currently exists no tort for the infringement of privacy: 

any legal remedy depends on the circumstances of the case and the conflicting rights 

involved. Established torts may be given a wider meaning in order to recognize 

privacy interests). 

- There is no duty on Commercial, but there is a duty on Royal and Continental, to 

defend the appellants. 

70


(Judge) 




Reasoning 



J.A., MacDonald, 

C.J.T.D. 



appeal 


written publication of 

material that disparages a 

person's or organization's 

goods, products or services 

and/or violates a person's 

right to privacy. 

PQ COURT OF APPEAL 

R. v. Murray 

[1999] J.Q. no 1037 

136 C.C.C. (3d) 197 

Rothman, Fish and 

Rousseau-Houle 

JJ.A. 

* no history 

Vehicle search 

R. v. Chahdi 

[1998] A.Q. no 377 

Fish, Rousseau-Houle 

and Chamberland 

JJ.A. 

* no history 


person (blood 

sample) 

Canada (Procureur 

général) c. Goodleaf 

[1997] A.Q. no 2665 

LeBel, Mailhot and 

Proulx JJ.A. 

- The police set up a 

roadblock in an effort to 

apprehend fleeing bank 

robbers. In the process, the 

police stopped Murray's truck 

and found that it contained 

contraband cigarettes. 

-Police seized blood-stained 

clothing from a murder 

victim's apartment. 

-They also obtained blood 

samples from the accused's 

socks and shoes, and from 

clothing in the trunk of the 

victim's car, which the 

accused was driving at the 

time of arrest. 

- The blood matched both the 

accused and the victim. 

- Police stopped the 

accused’s car because she 

was speeding. 

- When her car stopped, the 

accused ran away, leaving her 

car door open. 


- Criminal Code, s. 240(1). 

- Charter, ss. 8, 10(a), 

24(2); 

Criminal Code, ss. 335, 

529.3. 


- Excise Act, L.R.C. (1985) 

c. E-14, s. 163(2). 

- (1) Did the search violate s. 8 by virtue of 

being arbitrary? 

• NO 

- (2) If there had been a breach, should the 

evidence have been excluded? 

• NO 

- (1) Did the search and seizure in the victim’s 

apartment violate s. 8? 

• NO 


• NO 

- (1) Did the unwarranted search and seizure 

violate s.8? 

• NO (trial judge said YES) 


- (1) By virtue of their common law powers, the police could lawfully set up a 

roadblock in the circumstances of this case. 

- Once the truck was stopped, the officer asked the respondent for permission to look 

within. This amounted to a warrantless search which was rationally connected to the 

purpose of the initial detention. The search was carried out in a reasonable manner 

and did not violate s. 8 of the Charter. 

- Ref. to Hunter (warrantless searches are presumed to be unreasonable). 

- Ref. to Edwards (must show the existence of a reasonable expectation of privacy). 

- (1) The police did not require a warrant to search the victim's apartment as they 

had received a credible complaint respecting her disappearance. 

- The accused had no right to privacy with respect to the victim’s apartment. 

- (2) It is not in the broader social interest to exclude the evidence: exclusion would 

likely bring the administration of justice into disrepute. 

- Ref. to Edwards (must show that a reasonable expectation of privacy has been 

violated). 

- (1) The officer had reasonable grounds for wanting to arrest the accused and to 

subsequently search the accused's vehicle. 

- By abandoning the vehicle, the accused lowered her expectation of privacy with 

regard to it. 


71


(Judge) 




Reasoning 



* no history 

Vehicle search 

R. c. Solomon 

[1996] A.Q. no 2131, 

110 C.C.C. (3d) 354 

Gendreau, Baudouin 

et Otis JJ.A. 

* Affirmed at SCC 


person - records 

- Police went to her car where 

they found and seized 314 

bottles of imported alcohol – 

an illegal amount. 

- Police seized documents 

from cell phone records and 

intercepted phone 

conversations. 

• NO 

- Charter, ss. 8, 24(2). - (1) Did the seizure violate s.8? 

• NO (trial judge said YES) 


NO 

- (1) It was the phone company and not the accused who had been targeted by the 

search warrant and as a result, only the telephone company could attack it on 

grounds of unreasonableness. 

- The documents that were released to the police did not contain any biographical 

information or any list of names. 

- The interception and recording by the state of conversations from a cellular 

telephone (which is considered private conversation) would never be valid unless 

authorized. 

- Ref. to Edwards (facts compared to Solomon; totality of circumstances). 

- Ref. to Hunter (s. 8 of the Charter does not authorize a search and seizure, but rather 

acts as a limitation on the powers of search and seizure set out in the Code). 

- Ref. to Plant (core biographical information; s. 8 protects integrity, dignity, and 

autonomy of the individual). 

- Ref. to Kokesch (boundaries of perimeter search). 

SK COURT OF APPEAL 

R. v. Bulmer 

[2005] 269 Sask. R. 

137 

Jackson J.A.; 

Sherstobitoff and Lane 

JJ.A. (con). 

* no history 

Search of Person, 


- The accused’s vehicle was 

missing its front licence plate 

and was pulled over. 

- The officer ran a CPIC 

search and found an 

outstanding warrant 

pertaining to a seatbelt fine. 

- The accused had a knife, 

which the officer removed, 

clipped onto his waistband. 

- A pat-down search and a 

search of the vehicle were 

conducted without the officer 

seeking consent. 

-The odour of cannabis was 

noted and upon searching the 

trunk, a backpack of 

marijuana was found. 

- HighwayTraffic Act, s. 

77(2) ; 

- Charter, ss. 8 and 24(2). 


• YES 


• YES 

- (1) The validity of a vehicle search depends on its having a valid purpose. There is 

no automatic right to search. 

- Police must secure evidence of the offence for which the accused is being arrested. 

There is a lesser expectation of privacy in a car than in one’s home or office or on 

one’s physical person (Caslake). 

-Thus, the appellant had a reasonable expectation of privacy in the vehicle and the 

officer had no valid purpose in searching. 

72


(Judge) 




Reasoning 



R. v. Luc 

[2004] 188 C.C.C. 

(3d) 436 

Bayda C.J.S.); 

Sherstobitoff and Lane 

JJ.A. (con). 



appeal 


Vehicle 

R. v. Galloway 

[2004] 187 C.C.C. 

(3d) 305 

Jackson J.A., Bayda 

C.J.S., Tallis J.A. 

* final level – 

- The accused was then 

arrested for possession for the 

purposes of trafficking in 

marijuana. 


warrantless search of a 

vehicle and its contents, 

including luggage of which 

the driver and passenger 

disavowed ownership. 

- Police searched a vehicle 

involved in a fatal accident. 

- Fisheries Act; 

- Summary Offences 

Procedure Act, s. 4(4.2) 

(reasonable expectation of 

privacy reference in 

relation to s. 487.01 

Criminal Code); 

- Charter, ss. 8, 9, 24(2). 

- Criminal Code, ss. 249(4) 

and (3), 255(3) and (2), 

252(1); s. 487.051(1)(b); 

686(1)(a)(i); 



• YES 


• NO 


• YES 


• NO 

- (1) The passenger had a reasonable expectation of privacy with regard to the 

vehicle but not its contents (because the passenger disavowed ownership of 

luggage), so the search is invalid. 

- There may be situations where a passenger can establish a reasonable expectation 

of privacy regarding a vehicle (e.g. sharing of driving responsibilities - Belnavis). 

Here the passenger was the renter of the vehicle. 

- Ref. to Edwards (onus is on each appellant to individually prove s. 8 violation). 

- (2) The evidence was non-conscriptive and can be admitted without compromising 

the fairness of the trial. 

-Ref. to Collins (3 factor test: conscriptive?; serious Charter violation?; effect of 

exclusion?). 

- Ref. to Kokesch (purpose of considering factors re seriousness of Charter violation 

(disrepute of justice system); marijuana drug offences are less serious than “hard” 

drug offences). 

- (1) There is a greater expectation of privacy for the registered owner of a vehicle. 

- The normal expectation of privacy is reduced where the accused is not present nor 

in possession of the vehicle for many months (but some reasonable expectation of 

privacy remains). 

- The search was warrantless, therefore prima facie unreasonable. 


Vehicle 

R. v. Ladouceur 

[2002] 165 C.C.C. (3d) 

321 

Jackson J.A. and 

Bayda C.J.S; Tallis 

J.A. (con). 

* no history 

- Police set up a random 

check-stop program that went 

beyond the purpose of 

highway safety and included 

a search for illegal 

contraband. 

- The accused’s vehicle was 

searched and drugs were 

found. 


Substances Act, s. 5(2) 

Schedule II; 


- The Court found a s. 9 violation, making a s. 

8 finding unnecessary. 

- (2) Should evidence be excluded under 

s.24(2)? 

• YES 

- (1) The check-stops were made because of knowledge that illegal contraband was 

being transported along Hwy #1. 

- (2) The trial judge excluded evidence under s. 24(2). 

73


(Judge) 




Reasoning 




Vehicle 

R. v. Spindloe 

[2001] 154 C.C.C. 

(3d) 8 

Jackson and 

Cameron JJ.A.; 

Bayda C.J.S. (con). 

* final level 


Business 

- Police searched a store 

premises without a legitimate 

warrant to search. 

-They seized drug 

paraphernalia and literature. 

- Criminal Code, s. 462.2; 



• NO 

- (2) Should evidence be excluded? 

• NO 

- (1) The common law authorizes plain view seizures where police presence is 

lawful. 

- At the first appeal, McLellan J.A. found that the appellant had a reasonable 

expectation of privacy only where items were not in plain view to the public (see 

Fitt). 

- The trial judge found the seizure legitimate under s. 24(2), but returned seized 

items (per s. 490 of the Criminal Code). 

- Ref. to Collins (a warrantless search is presumed unreasonable). 

74

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