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) 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. 32
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) Identity – Fingerprints identify accused in connection with a robbery. • NO - (2) Regardless of the Charter breach, evidence could have been obtained in other ways. - Any Charter breach here was extremely technical, and police acted in good faith (Cummings and Newbury). - Note also the discussion of the retention of fingerprints and the legitimacy of maintaining a database of fingerprints. R. v. B. (M.R.) [1998] B.C.J. No. 1197 Braidwood J.A.; McFarlane and Hollinrake JJ.A. (con). *Final Level Identity/Search of Person (Blood Sample) R. v. Vu [1998] B.C.J. No. 2694 Hall J.A.; Southin and Lambert JJ.A. (con). * Final Level -The appellant was the driver in an accident in which the front seat passenger was not wearing a seatbelt and was killed and the appellant and two other passengers were injured. - The ambulance attendant asked if the appellant had consumed alcohol. She stated she had had six coolers and some rum. - The investigating officer spoke to the attendant who disclosed the details of his conversation with the appellant. - A physician took a blood sample from the appellant for the purposes of diagnosis and treatment. - Police obtained a search warrant to seize the blood. - The police suspected the appellant of involvement with illegal weapons. - They arranged for someone to phone his house and inform him that the police were coming with a search warrant to search the - Charter, s. 8; - Criminal Code, ss. 253(b), 255(2), 255(3). - (1) Did the ambulance attendant violate the appellant’s rights when he conveyed information to the police regarding the amount that she drank? • NO - Charter, ss. 8. - (1) Was the way in which the police obtained the evidence (calling and getting the accused out of the house) a violation of s. 8? • NO - Ref. to Hunter (taking bodily substances without warrant is presumed to be unreasonable). - (1) The information provided to the police by the ambulance attendant was not the private, intimate information protected by s. 8 of the Charter. • The information was volunteered in response to the attendant's inquiries. • Once the officer had information about alcohol consumption, he was under a duty to investigate further. • The attendant was not reporting to the police but simply fulfilling the requirements of his job. - Ref. to Plant (core biographical information). - Ref. to Hunter (s. 8 protects a person’s reasonable expectation of privacy). - (1) When the appellant came out of his house with a bag and entered his vehicle, the totality of the circumstances afforded a proper basis for a reasonable and probable belief that he was engaged in criminal activity. • At that point, the police had lawful grounds to arrest him. The search of the truck was lawful. - Ref. to facts of Edwards. - Ref. to Wong. 33
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Complete Cases Chart - Supreme Court of Canada - On the Identity ...

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