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. Law
[2002] 1 S.C.R. 227,
Bastarache J. with
McLachlin C.J. and
L'Heureux-Dubé,
Gonthier,
Iacobucci, Major,
Binnie, Arbour and
LeBel JJ. (con)
- The defendant’s safe was
stolen and found open. A
police officer photocopied
tax documents and sent them
to revenue Canada.
- Charter, ss. 8, 24(2); and
- Excise Tax Act, ss. 288,
327.
- (1) Did the police action in searching the
stolen safe and seizing tax documents violate
s.8 of the Charter?
• NO
- (2) Should the evidence be excluded under
s. 24(2)?
• YES
- (1) D had a reduced reasonable expectation of privacy in the contents of his stolen
safe.
- (2) The police could examine the contents for the purpose of pursuing the thief but
not on the basis of hunches about the defendant’s tax returns.
- Ref. to Kokesch (seriousness of the breach; police acting in good faith)
- Ref. to Edwards (objective and subjective reasonable expectation of privacy
required)
- Ref. to Hunter (boundaries of a reasonable search)
Identity / Search
of Person –
Personal Info
R. v. Fliss
[2002] 1 S.C.R. 535
Arbour J. with
L'Heureux-Dubé,
Iacobucci, Major,
Bastarache, Binnie,
and LeBel JJ. (con)
Surveillance
(Wiretap)
- The accused confessed to an
undercover police officer that
he killed a woman.
- The officer secretly recorded
the conversation pursuant to
prior judicial authorization.
- The officer then reviewed
the transcript and made
corrections based on his own
recollection.
- Charter, ss. 8, 24, 24(2);
and
- Criminal Code, s.
686(1)(b)(iii).
- (1) Did the use of the tape and material
based on the officer’s recollections violate s. 8
of the Charter?
• YES (But only the unremembered portions
of the transcript violated section 8 of the
Charter).
- (2) Should the evidence be excluded?
• NO
- (1) The officer's testimony was admissible.
- He was entitled to refresh his memory by means of inadmissible evidence but he
should not have been allowed, at trial, to recite the transcript beyond what he could
recall.
- The testimony was not admissible as past recollection recorded because the
transcript did not accurately represent his recollection.
- The Charter breach did not cause or contribute to Fliss's statements.
- The key elements of the confession were available at trial from the officer's own
recollection.
- (2) The evidence should not be excluded under section 24(2) because its admission
did not affect the fairness of trial, it was not conscripted, and the confession was
freely given.
- The Charter breach did not cause or contribute to Fliss's statements.
- The exclusion of the officer's testimony itself would bring the administration of
justice into disrepute.
Lavallee, Rackel and
Heintz v. Canada (A-
G); White,
Ottenheimer and
Baker v. Canada (A-
G); R. v. Fink
[2002] 3 S.C.R. 209,
- All three cases deal with s.
488(1) of the Criminal Code,
which concerns the
protection, under attorney /
client privilege, of
information seized under
warrant from lawyers’ offices.
- Charter, ss. 1, 7, 8,
10(b), 11(b);
- Criminal Code, s.488(1)
- (1) Does s. 488(1) of the Criminal Code
violate s.8 of the Charter?
• YES
– Ref. to Stillman and Duarte also.
- S. 488(1) more than minimally impairs solicitor-client privilege.
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