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)
Donald J.A.; Finch
and Rowles JJ.A.
(con).
*Final Level
Identity/Search of
Person - DNA
Sample
Festing v. Canada
(Attorney General)
2001 BCCA 612
Prowse J.A.; Donald
J.A. (con); Newbury
J.A. (dis).
* Final Level (leave
to appeal refused by
SCC)
Property Search –
Law office
judge that he had to provide a
blood sample for the DNA
data bank.
- Police conducted a
warranted search of a
Kelowna law office.
-Documents were seized and
given to the sheriff pending
an application under s. 488.1
and 487 of the Criminal
Code, which refer to
solicitor-client privilege.
-The constitutionality of the
Criminal Code provisions
was challenged.
487.04, 487.051, 487.052,
487.052(1), 487.06(1);
- DNA Identification Act,
ss. 3, 4;
- Identification of
Criminals Act, s. 2.
- Charter, s.8;
-Criminal Code, ss. 488.1,
487.
• NO
(1) Does s. 488.1 of the Criminal Code
infringe s. 8 of the Charter?
• YES (and it is not saved under s.1)
(2) What is the appropriate remedy?
• Strike down the section
(3) Does s.487 infringe s. 8 of the Charter to
the extent that it applies to law offices?
• YES
• The DNA sampling techniques were minimally invasive and could not reveal
anything more about Ku than his identity.
• The offences were very serious and the level of violence over a trivial matter was
of grave concern. It was in the best interests of the administration of justice that
the DNA order be made
- Ref. to Hunter (the seizure must be reasonable; the minimum standard is
reasonable and probable grounds).
- Ref. to Briggs (the state's interest in the DNA bank is not simply law enforcement,
but to deter potential repeat offenders, promote the safety of the community, detect
when a serial offender is at work, assist in solving cold crimes, streamline
investigations, and assist the innocent by early exclusion from investigative
suspicion or in exonerating the wrongfully convicted). Murrin, Dyment cited.
- (1) The section is a prima facie violation of a client’s reasonable expectation of
privacy for the following reasons (1-4):
“1. the absence of any notice provisions for clients, and the prospect that
privilege can therefore be effectively lost or waived without notice to the
client by operation of s. 488.1(6);
2. the above problem is exacerbated by the strict time limits contained
in s. 488.1(3), particularly in light of the practical difficulties of notifying
clients when multiple files of a lawyer are searched and seized. In the
result, privileged documents may ‘fall through the cracks’;
3. privilege may be potentially lost to the prosecuting authority by
virtue of s. 488.1(4)(b);
4. the requirement to name clients under s. 488.1(2) may result in a loss
of privilege.” (para. 17)
(4) What is the appropriate remedy?
• Read into the section an exclusion for law
offices (warrant cannot be issued for law
offices).
- (2) Rewording the section to be constitutionally sound is a job properly left to
Parliament.
- (3) and (4) S.487 infringes s.8 to the extent that it authorizes the search of law
offices without providing adequate safeguards to protect to the greatest degree
possible solicitor-client privilege in information. A clear and uniform standard is
required (and was attempted in the impuned s.488.1).
- Note: “The rapid growth and use of technology in law firms has changed the very nature
of a "document" such that computer hard drives are now being seized which may contain
documents relating to hundreds of clients, most of whom have no connection to the
"target" of the search. The interdisciplinary nature of modern law firms has also raised the
spectre of seizures from such firms resulting in the potential breach of confidentiality with
respect to clients of accountants or other professionals associated with the law firm” (para.
37)
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