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)
R. v. North
2002 ABCA 134
McMeekin J.A.;
Lewis and Nation
JJ.A. (con).
*Final Level
Identity/Search of
Person - DNA
Sample
R. v. Daley
2001 ABCA 155
McClung J.A.;
Sulatycky and
Fruman JJ.A. (con)
*Final Level
Identity/search of the
person (body search)
- The accused was charged
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.
- Criminal Code, ss.
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);
- DNA Identification Act,
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
of the Charter?
• YES
- (2) Should the evidence be excluded?
• NO
person asserting the right on a balance of probabilities)
- Ref. to Hunter (warrantless searches are presumed to be unreasonable)
- (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
- Charter, ss. 8, 24(2);
- 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,
violate s. 8 of the Charter?
• 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 Hunter (purpose of s. 8).
- Ref to Kokesch (police must act in good faith; boundaries of a perimeter search of
home)
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