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. D.M.F.
1999 ABCA 267
Hetherington J.A.;
Berger and Smith JJ.A.
(con).
*Final Level
Identity/Search of
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.
- The accused was charged
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
Identity/Search of
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
- The accused was convicted
of possession of child
- Charter, s. 11(f);
- Criminal Code, s. 644.
- Criminal Code, ss.
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.
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