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) R. v. Khuc, Bui, Pham and Tran 2000 BCCA 20 McEachern C.J.B.C.; Finch and Ryan JJ.A. (con). *Final Level Property search- Home – not owner R. v. Novak 2000 BCCA 257 Braidwood J.A.; Cumming and Finch JJ.A. (con). *Final Level Property search- Home (Hydro/Electrical Searches) – R. v. Bohn 2000 BCCA 239 Ryan J.A.; Hollinrake and Huddart JJ.A. - An undercover cop purchased drugs on several occasions. - The seller’s car was seen to enter and exit a particular address. - A search warrant was granted for that address. - The police seized a number of items, including children's clothes, drug paraphernalia, cash, documents, and 722 grams of cocaine. - The accused claimed that they had a reasonable expectation of privacy with respect to the house because they were babysitting. - Novak leased a unit in a warehouse under a false identity. - Hydro records were in a third person's name. - The police suspected a drug cultivating operation and obtained hydro records for the unit showing hydro consumption for the unit was higher than for other units. - The unit also emitted a strong smell of marijuana. - Police then got a search warrant and uncovered drugs. - The police received a tip that the accused had a hydro bypass and a marijuana grow operation in his residence. - After getting a warrant to - Criminal Code, s. 186(1)(b)(iii). • Charter, ss. 8, 24(2). - Charter, ss. 8, 10(b), 24(2); - Criminal Code, s. 40; - Criminal Code, s. 29(1); - Narcotic Control Act. - (1)Was there a reasonable expectation of privacy with respect to the house searched by the police? • NO - (1) Did the way the search warrants were obtained violate s. 8? • NO - (2) Should the evidence be excluded? • NO - (1) Did failing to produce a copy of the warrant (and nevertheless searching the accused’s home) violate s. 8 of the Charter? • YES - (1) The accused did not assert possession or control of the property, they did not claim ownership, and there was no evidence of their historical use of the premises. • That they were babysitting was only an assertion unsupported by any evidence. • There was no evidence of their ability to regulate access. - Ref. to Edwards (facts compared and distinguished; totality of circumstances). - (1) There was no evidence that Novak had any expectation of privacy with respect to the hydro records seized or with respect to the premises. - He didn’t own the building, didn’t live there, there was no evidence he was the lessee or responsible for the hydro. - (2) There was no violation of s. 8 because the accused had no reasonable expectation of privacy with respect to the premises he didn’t own or occupy. Therefore – the evidence should not be excluded under s. 24(2). - Ref. to Plant (core biographical info; personal and intimate details of lifestyle) - Ref to Edwards (Two distinct questions must be answered in any s. 8 challenge: whether the accused had a reasonable expectation of privacy and whether the search was an unreasonable intrusion on that right to privacy). - (1) Failure to produce the warrant on request without good reason was a significant breach. • It deprived the accused of seeing the legal authority on which the invasion of his privacy was based. • The breach was serious because, in conjunction with the privacy breach, it 30
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) (con). *Final Level Property - Home (Hydro by-pass) search his house, police were unable to show the accused an actual copy of the warrant. - (2) Should the evidence be excluded? • YES demonstrated the inattention of the police to the accused's rights. - (2) Admission of the evidence obtained by this kind of unwarranted search could bring the administration of justice into disrepute if the courts allowed this kind of police conduct, and it was therefore excluded. R. v. Mooring [1999] B.C.J. No. 1557 Prowse J.A.; McEachern and Goldie JJ.A. (con). * Final Level Surveillance Wiretap/ Procedural Fairness R. v. Vu 1999 BCCA 182, McEachern C.J.B.C.; MacFarlane and Goldie JJ.A. (con). *Final Level Identity/Search of Person (Photograph/ identity) – this is not the case we have on computer - The accused was convicted of murder based on evidence from unreliable witness, who gave evidence of a conversation he had with Mooring in which Mooring allegedly confessed to shooting someone. - The convictions were also partly based on Mooring's intercepted communications, but Mooring was not named in the wiretap authorization. - An undercover officer purchased cocaine from the accused at a residential dwelling. - Two officers then went to the premises without a warrant and questioned the accused about an assault. - The officers noted that the accused’s face and clothing matched the description provided by the undercover officer. - The accused was arrested and photographed. - The undercover officer testified that she had not used the photographs to refresh her memory of the accused. - Criminal Code, ss. 185, 185(1)(e), 186(4)(a), 186(4)(b), 186(4)(c), 686(1)(b)(iii); - Charter, ss. 8, 24(2). • Charter, ss. 8, 24(2). - (1) Did the wiretap recording of the accused violate s. 8? • YES - (2) Should the evidence be excluded? • YES - (1) Was going up to the accused door, knocking, then taking a physical description of the accused a violation of his reasonable expectation of privacy per s. 8 of the Charter? • NO - (2) Should the evidence be excluded? • NO - Ref. to Hunter (s. 8 protects people and not things or places; people are entitled to a reasonable expectation of privacy). - (1) The accused was acquitted of the murder charges. • Although it authorized the interception of the accomplice’s communications, the wiretap warrant did not authorize an interception in respect of Mooring and therefore it violated his reasonable expectation of privacy. - (2) The quality of the wiretap evidence was so poor, incomplete and incomprehensible, that it should not have been admitted. • The witness was unreliable, but the information given was not so devoid of reliable content as to be inadmissible on the grounds that it would bring the justice administration into disrepute. - Ref. to Ferris - (1) The conduct of the officers was reasonable, as they had reasonable grounds to believe that an offence had been committed. • Walking to the door and knocking on it constituted a minimal interference with the privacy interest of the occupant. • Looking at people and taking a physical description of those who answer the door are non-intrusive techniques for determining the characteristics of the accused. - (2) Looking at the person who answers the door is a non-intrusive technique and was not characterized as conscriptive. • The evidence should be admitted in any event under section 24(2) of the Charter. • Rejecting this evidence on the basis of either trespass or "using the body" of the accused for identification by simply looking at him in a non-invasive way would clearly bring the administration of justice into serious disrepute. - Ref. to Hunter (warrantless searches are presumed to be unreasonable; s. 8 protects a person’s reasonable expectation of privacy) - Ref. to Kokesch (can’t obtain evidence through a Charter breach; police must act in good faith in conducting searches). 31
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Complete Cases Chart - Supreme Court of Canada - On the Identity ...

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