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)
Patterson v. British
Columbia (Attorney
General)
1999 BCCA 645
Holllinrake J.A.;
Southin J.A. (con);
Ryan J.A. (dis).
*Final Level
Identity/Search of
Person; Records
R. v. Sharpe
1999 BCCA 416
Southin J.A.; Rowles
J.A. (con); McEachern
J.A. (dis).
* Reversed SCC
(6:3 upheld the law
but read down the
section)
Property search –
Home (perimeter
search)
- As a condition of receiving
income assistance, it is the
practice of the respondent
government to require people
to provide the Ministry of
Social Development and
Economic Security with
information regarding their
identity, address, assets,
sources and amounts of
income, and cost of shelter.
- Patterson and the
Marginalized Workers Action
League appeal a decision
dismissing their challenge of
the requirement.
- Police conducted a
warranted search of the
accused’s home and seized a
collection of materials
alleged to be pornographic.
- B.C. Benefits (Income
Assistance) Act, ss. 3,
8(1)(a), 8(1)(b), 8(1)(c),
8(3)(a), 8(3)(b), 19(2) (a),
19(2)(b), 24(2)(e),
24(2)(k);
- Charter, ss. 1, 7, 8;
- Income Assistance
Regulation, B.C.
Regulation 75/97, ss. 1,
2(1)(a)(ii).
- Charter s. 2(b), s.8, s.1;
- Criminal Code,
s.163.1(4).
- (1) Does requiring this personal information
as a condition of receiving income assistance
violate s. 8 of the Charter?
• NO
- (1) Do the provisions of the Criminal Code
prohibiting the private possession of
expressive materials (child pornography)
violate the Charter?
• YES
(1) Mandatory consent was necessarily incidental to achieving the purpose of
ascertaining eligibility for benefits.
• Limitations on the form of consent ensured that no Charter right was breached, as
the consent was only to verify information. Outside agencies could release
information only if it was relevant to eligibility for assistance.
• The information was said to be contained and did not go beyond the agency
• Therefore there was no breach of s. 8.
- Ref. to Plant (core biographical information).
- Ref. to Hunter (purpose of s. 8).
- The section infringes s.2(b) and cannot be saved under s.1 because it is overly
broad and fails the proportionality test.
- Southin: A significant value underlying the Charter is a reasonable expectation of
privacy and case law concerning freedom of expression reflects the Charter’s
concern about privacy (particularly in the home or in private conversation).
Detrimental effects to freedom of expression and the right to privacy substantially
outweigh salutary effects.
- Rowles: Concurs that the appeal should be dismissed and speaks in general terms
about the importance and value of privacy enshrined in the Charter as a backdrop to
determining whether or not the impugned section is minimally impairing under s.1.
- McEachern (dis): S.8 is a specific guarantee against unreasonable search and
seizure. Searches and seizures conducted under warrant could only be at issue if
conducted under an invalid law. Privacy is an important factor when considering the
overbreadth of legislation (particularly in the home and in private papers).
R. v. Connors
1998 CanLII 12468
(BC C.A.)
Cummings J.A.;
Donald and Newbury
JJ.A. (con).
* Final Level
- Prior to laying a drunkdriving
charge, police
fingerprinted the accused
while in custody.
- The accused was
subsequently convicted.
- His fingerprints were later
used in another case to
- Charter, s.8, 9 and 24(2);
- Identification of
Criminals Act (ICA);
Criminal Code ss. 501 and
509.
(1) Did fingerprinting the accused before
charging him violate s.8?
• NO
(2) Should the evidence be excluded under
24(2)?
(1) The taking of fingerprints is, at common law, an incident to lawful arrest and not
displaced by ICA (Cummings).
• The accused consented to having fingerprints taken and there was therefore no
violation of s.8. Donald disagrees with Cumming’s statement of common law
power and notes the implications for informational privacy.
• Newbury generally concurs with Cummings except with respect to the status of
the ICA, which has displaced common law.
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