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) 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 Identity/Search of Person – Accused’s Info R. v. Hyatt 2003 BCCA 27 Smith J.A.; Low and Levine JJ.A. (con). * Final Level Property - vehicle - BCTF challenged the School Act on the basis of s. 8 of the Charter. - 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. - Charter, ss. 8, 9, 10(b), 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 - (2) Should the evidence be excluded? • 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
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. 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. - Charter, ss. 8, 24(2); - 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 - (3) Should the evidence be excluded? • 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
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Complete Cases Chart - Supreme Court of Canada - On the Identity ...

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