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) 1342 Ryan J.A.; Esson and MacKenzie JJ.A. (con) * Final Level Surveillance (webtap) Procedural Fairness 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 - (2) should the evidence be excluded? • 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; - Controlled Drugs and 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
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) (warrantless search) 8 of the Charter. 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 Identity/Search of Person (Info/identity) - 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) Identity/Search of 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) - The accused was charged 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. - Charter, s. 8; - Criminal Code, s. 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. - Ref. to Hunter (purpose of s. 8) - Ref. to Collins - (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
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Complete Cases Chart - Supreme Court of Canada - On the Identity ...

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