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

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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) McLachlin C.J., 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 Plant (core biographical information) - Ref. to Edwards (totality of circumstances) - 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 McLachlin C.J., 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 McLachlin C.J., Gonthier, Iacobucci, Major, Bastarache, Binnie, 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 - (3) Should the evidence be excluded under 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 Personal Info – DNA 2
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) R. v. Law [2002] 1 S.C.R. 227, Bastarache J. with McLachlin C.J. and L'Heureux-Dubé, Gonthier, Iacobucci, Major, 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 - (2) Should the evidence be excluded under 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 Arbour J. with L'Heureux-Dubé, Iacobucci, Major, Bastarache, Binnie, 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
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Complete Cases Chart - Supreme Court of Canada - On the Identity ...

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