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) Surveillance (Wiretap) R. v. Cheung [1997] B.C.J. No. 2282 Braidwood J.A.; Newbury and Hall JJ.A. (con). * Final Level (Leave to appeal dismissed by SCC) Surveillance Wiretap R. v. Nenadic 1997 CanLII 3802 (BC C.A.) premises (even though this wasn’t true). - This caused the appellant to leave his residence with a bag of possessions that turned out to include drugs, jewellery and weapons. - As he was leaving, the police arrested the appellant, then searched his truck contemporaneously with the arrest. - A shipment of heroin was seized when the courier, Copon, was arrested upon her arrival in Vancouver. - The accused's involvement in an agreement to import these drugs was established through a tapped telephone conversation between him and a third party, Tam, following Copon's arrest. - Police entered the accused’s home before a warrant had been issued. - Charter, ss. 8, 24(2); - Criminal Code, s. 185. - (1) Did using the wiretap information to arrest the accused violate s. 8 of the Charter? • NO - (2) Should the evidence be excluded? • NO - Charter s.8 and s.24(2). - (1) Was the search unreasonable? • YES - (1) At the time of the application for the wiretap, reasonable grounds existed to believe that the accused, Tam, and others were on the verge of importing a kilogram of cocaine into Canada. • The accused's privacy rights were not infringed by interceptions made under one authorization. - (2) Section 24 of the Charter is a remedial section which may only be relied upon by one whose substantive individual rights have been violated. • There was no violation of s. 8 and therefore the wiretap information should not be excluded pursuant to s. 24(2). - Ref. to Edwards (totality of circumstances). - Ref. to Hunter (s. 8 is a personal right that protects people - not places). (1) R. v. Silveira (S.C.C.) (1995), a case concerning searches under the Narcotics Control Act, applies to searches under the Criminal Code, and applying it to the entry in this case renders the entry contrary to s.8. Ryan J.A.; Rowles and Proudfoot JJ.A. (con). * Final Level Property search – Home (warrantless search) Brazier v. Vancouver (City of) [1997] B.C.J. No. - Brazier parked his vehicle in a no parking zone contrary to a city bylaw. (2) Should the evidence be excluded? • NO - Charter, ss. 1, 8. - (1) Did the bylaw violate the accused’s s. 8 rights? (2) The trial judge’s finding that admitting the evidence would not bring the administration of justice into disrepute is reasonable. • The police acted in good faith, discovered real evidence in exigent circumstances, and the trial would not be rendered unfair by admitting the evidence. - The City had a valid purpose in controlling illegal parking. -Even if taking the car constituted a seizure under s. 8 of the Charter, it was 34
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) 2636 Goldie J.A.; Rowles and Huddart JJ.A. (con). * Final Level Property - vehicle R. v. Piche [1996] B.C.J. No. 2600 Gibbs J.A.; McEachern and Legg JJ.A. (con). *Final Level Identity/Search of Person (body search) R. v. Hutchings [1996] B.C.J. No. 3060 McEachern C.J.B.C.; MacFarlane and Prowse JJ.A. (con). *Final Level (leave to appeal dismissed at SCC) Property search- Home (Hydro/Electrical/ - His vehicle was ticketed and towed pursuant to the Impounding Bylaw, and he had to pay $17 to retrieve it. -Brazier claims that s. 3(a) of the Impounding Bylaw violated his rights under section 8 of the Charter. - The accused was charged with a robbery committed by a masked man. -After the accused was caught by police they found a bag with lots of money in his pants. - The accused couldn’t say where the money had come from or where he lived. - He was then taken to the police station and detained. - While detained, the police investigated the money found on the accused and discovered the bills were marked as coming from a bank. - Police set up surveillance of a property, but saw nothing indicating the barn was used for a large cannabis cultivation operation, as alleged by an informant. - The RCMP contacted BC Tel, which verified that the phone was registered to Hutchings' sister. - Hydro records showed the barn's electrical consumption was low, which suggested that electrical power was • NO - Charter, ss. 7, 8, 9. - (1) Was the accused’s s. 8 Charter right violated in that the officer had no reasonable or probable grounds to search and seize the money and to make further inquiries regarding its origin? - Charter, ss. 8, 10(b); - Criminal Code, s. 686(1)(b)(iii); - Narcotic Control Act. • NO - (2) Should the evidence be excluded? • NO - (1) Was there a violation of s. 8 of the Charter with respect to the hydro bill, telephone information or the FLIR? • NO authorized by law and the law is reasonable in light of its purpose and need. - Ref. to Hunter (s. 8 protects reasonable expectation of privacy). - (1) The appellant had little or no expectation of privacy in respect of the money given that it had been in the custody of the police since his initial lawful arrest. - (2) However, even if the search and seizure violated section 8 of the Charter, the evidence should be admitted becausethe admission of the evidence would not bring the administration of justice into disrepute. - (1) The telephone number did not disclose Hutchings’ personal “core” information (as discussed in Plant), and it did not qualify as information for which he had a reasonable expectation of privacy. • Hutchings' reasonable expectation of privacy with respect to the property was lessened by the hydro bills which gave hydro a right of entry (Benham case). • Hutchings had no reasonable expectation of privacy regarding the escape of heat from the barn (FLIR didn’t reveal any new information and just aided the naked eye to see what was being emitted from the house – see also Binnie’s argument in Tessling) • There was sufficient admissible evidence in the information to justify issuing the warrant for the barn. - Ref. to Plant (core biographical information). - Ref. to Tessling (can’t have reasonable expectation of privacy in the heat 35
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