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) FLIR Searches) – R. v. Krist [1995] B.C.J. No. 1606 Rowles J.A.; Hollinrake and Prowse JJ.A. (con). *Final Level Property search- Home – garbage/ perimeter search Fieldhouse v. British Columbia [1995] B.C.J. No. 975 Gibbs, J.A.; Hollinrake and Lambert JJ.A. (con). *Final Level Identity/Search of Person (Urinalysis Program) R. v. Seney [1994] B.C.J. No. 1638 being diverted. - Police also engaged in FLIR to take aerial heat photographs of the dwelling - Hutchings challenged the validity of the search warrant for the barn. - After receiving information about a marijuana growing operation in the appellant's home, police went to the appellant's residence where they noticed 3 garbage bags on the side of the road. - They seized 2 bags without a warrant and, upon searching them, found: four small marijuana plants, remnants of some paraphernalia indicative of a marijuana grow op, and a bank account statement in the appellant’s name. - Police got a search warrant based on contents of the bags. - Fieldhouse claims that section 54(b) of the Corrections and Conditional Release Act and sections 60 and 63 of the Corrections and Conditional Release Regulations are contrary to sections 7, 8, 12 and 15 of the Charter. - The impugned sections authorized a mandatory urinalysis program. - In search of signs of drug cultivation, police conducted a perimeter search of the accused’s home without a - Charter, s. 8. - (1) Was the police’s search and seizure of the accused’s garbage a violation of s. 8? - Charter, ss. 7, 8, 12, 15, 24; - Constitution Act, 1982, s. 52(1); - Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 2, 3, 4, 46, 54(b); - Corrections and Conditional Release Regulations SOR/92-620, ss. 60, 63, 66. - Charter, ss. 8, 24(2); - Narcotic Control Act, s. 6. • NO (1) Do these sections contravene s. 8 of the Charter? • NO - (1) Did the unlawful perimeter search violate s. 8 of the Charter? • YES emenating from home). - Ref. to Edwards (totality of circumstances). - (1) Putting material in the garbage amounts to abandoning it. It signifies that the material was no longer something of value or importance to the person disposing of it and that there was no reason or need to retain it (similar to DMF case). • Once property is abandoned, there is no longer a reasonable expectation of privacy in respect of it. - Ref. to Hunter (purpose of s. 8; only protects a reasonable expectation of privacy). - Ref. to Dyment. - (1) Given the nature and extent of drug abuse in prisons, the appellants have no greater reasonable expectation of privacy in regard to urinalysis than someone else would, in another context, in regard to a frisk search. - The impugned regulations promote security and safety. - Given the limited privacy interest and minimal intrusion, the law was reasonable, as were the provisions to carry it out. - Ref. to Kokesch (3 Kokesh tests for determining whether a search is reasonable are: 1.Is the search authorized by law? 2.Is the law reasonable? 3.Is the manner of carrying out the search reasonable?) - (1) The officer in charge did not have the required subjective belief that there were grounds upon which a search warrant could be obtained before the perimeter search was undertaken. - The officer had acted in good faith. There were reasonable grounds for a warrant 36
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) Taylor J.A.; MacFarlane and Hutcheon JJ.A. (con). *Final Level warrant. - (2) Should the evidence be excluded? • NO without the need for further evidence obtained in the perimeter search. - (2) The evidence should be admitted in pursuant to s. 24(2). - The search was conducted in good faith per section 24(2) of the Charter. Property search- Home (Perimeter Searches) Pierre v. Pacific Press Ltd. [1994] 113 D.L.R. (4th) 511 Taylor J.A.; Goldie J.A. (con); McEachern J.A. (dis) *Final Level Identity/Search of Person (Info/identity) R. v. Evans [1994] 93 C.C.C. (3d) 130 Southin J.A.; Proudfoot J.A. (con); Rowles J.A. (dis). *Affirmed SCC - Pierre brought an action against the defendants seeking damages for psychological illness suffered as a result of the publication of interviews with Pierre soon after she had witnessed a murder and while the murderer was still at large. - The reports identified Pierre by name and showed her picture. -The action involved an application to strike out a jury notice, which was dismissed. -Pierre appeals that judgment on the basis that the trial would raise issues of an intricate or complex character unsuited for a jury. - Police went to the accused’s home without a warrant, knocked on the door and, when the door was opened, detected the odour of marijuana. - Police then entered the house and conducted a search to secure it. They arrested - Privacy Act, s. 1.; - Charter, ss. 1, 2(b), 7; - Negligence Act. - Charter, ss. 1, 8, 24(2); - Criminal Code, s. 687; - Narcotic Control Act, ss. 3(1), 4(1), 6(1), 10, 12. NOTE - In a lot of these cases where there was a problem with obtaining a search warrant it seems as if the courts are trying to find in favour of the state because of the consequences on the broader social interest of finding for the accused. - (1) Were the appellant’s privacy rights violated when the reports were published? • NO - (1) Did the way in which the evidence was obtained violate section 8 of the Charter? • YES - (2) Should the evidence be excluded? • NO - Ref. to Kokesch (boundaries of a perimeter search of a home). - Ref. to Plant (in order for "good faith" to be established in these cases, for the purposes of s. 24(2), the Crown must show that the police not only believed they were entitled in law to conduct the warrantless perimeter search, but believed also, on reasonable grounds, that an offence under the Narcotic Control Act was being committed). - (1) To the extent that determining the degree of privacy protection requires a weighing of interests, as the appellants say it does, that balancing is no more complex or intricate in this context than in that of the negligence claim. - Therefore, privacy was discussed along with negligence. - (1) It was only by licence of law (as discussed in R v. Grant), not by licence of the householder, that the police could enter to enforce the law. - Therefore, the “knock on” visit, as an investigative technique (i.e. by smelling the air once the door has been opened) would have to be abandoned on as an investigative technique would have to be abandoned. - (2) Despite there being a s. 8 breach, because a large amount of marijuana was discovered (approximately 11 1/4 pounds), consistent with a commercial operation, and since trafficking is a serious offence, the Court did not exclude the evidence. 37
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