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) Prowse J.A.; Toy and Southin JJ.A. (con). * Final Level (Leave to appeal dismissed by SCC) Property - vehicle - The bag was sent by an accomplice. - Upon listening to a conversation through an apartment door, police feared the destruction of evidence and entered to arrest the accused and accomplices. - Narcotic Control Act, s. 10. • NO - (2) Was there a violation of the accused’s reasonable expectation of privacy when the police stood at the door of apartment and eavesdropped (ear to door)? • YES - (3) Should the evidence be excluded? • NO following day, the privacy interest which the accused asserted was a reasonable expectation of privacy in his home and not with respect to the bag and its contents. - The accused therefore did not have standing to challenge the admissibility of the evidence obtained in the search and seizure of the bag at the airport. - A person inside an apartment could have no reasonable expectation of privacy with respect to conversations which could be overheard with the unaided human ear from outside the apartment. - The public has a reasonable expectation of privacy in their home, which includes the expectation that a person's conversations, carried on in a "normal" tone of voice, will not be eavesdropped upon by police in the manner which occurred here: someone using the hallway in a normal manner couldn’t have overheard the conversation taking place in the accused's apartment. - (2) The invasion of privacy in this case was not of the magnitude of the invasion of privacy accompanying searches by means of electronic devices. - Admitting the evidence would not deprive the accused of a fair trial. - Police were acting in good faith and were in hot pursuit of the accused and his accomplice. - The evidence obtained as a result of the search should not be excluded here under s. 24(2). R. v. Melenchuk [1993] B.C.J. No. 558 Gibbs J.A.; Corrothers and Prowse JJ.A. (con). *Final Level Identity/Search of Person; Procedural fairness R. v. Dilling [1993] B.C.J. No. 865 - The accused was charged with, and convicted of, counterfeiting U.S. money. - He challenged the search warrant based on alleged deficiencies in the information used to obtain it. - The Provincial Court judge found that none of the alleged misstatements or half-truths were intended to mislead the issuing Justice of the Peace. - The subject of the impugned statements was trivial. -The appellant was convicted of bargaining in a public - Charter, ss. 8, 24, 24(2).; - Criminal Code, ss. 449, 450(b). - Criminal Code, ss. 213(1)(c), 495, 495(1)(b), - Did the search violate s. 8 of the Charter? • NO - (2) Should the evidence be excluded? • NO - (1) Did taking the appellant’s photograph while he was detained violate his rights under - Ref. to Kokesch (warrant obtained in breach of Charter not valid; police must act in good faith when conducting search). - Ref. to Hunter (s.8 protects reasonable expectation of privacy only). - (1) Where there is no intent to mislead, the appellant must prove that the misstatements or half-truths were so significant as to affect the information as a whole in terms of rendering it misleading,which he was not able to do. - (2) If there is deliberate deception in obtaining the warrant, it would be quashed and the evidence obtained through execution of the warrant would likely be excluded, but this was not the case here so the evidence should not be excluded. - Thus, even accepting that there were misstatements, omissions and half-truths in the information for the warrant, the evidence was at risk of exclusion under s. 24(2) only if those shortcomings were in furtherance of a deliberate intent to mislead. - Ref. to Kokesch (boundaries of perimeter search of residence; test to determine whether search was unreasonable). - Ref. to Hunter (s. 8 protects reasonable expectation of privacy). - (1) The photographic record was a means of refreshing the recollection of the undercover officer as to the identity of the person who communicated with her on 40
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) Goldie J.A.; McEachern and Taggert JJ.A. (con). *Final Level Identity/Search of Person (photo/identity) place for the sexual services of a prostitute. - He alleged that the police officers, in photographing him without his consent while he was detained, violated his Charter rights (ss 7, 8 and 10(a) and(b)). 495(2)(d)(i); - Charter, ss. 7, 8, 10, 10(a), 10(b), 24(2). s. 8 of the Charter? • YES (2) Should the evidence be excluded? • NO the night in question. - It was also one of the means by which the detaining officers could be satisfied it was in the public interest that the appellant be arrested. - (2) The evidence should not be excluded because the sole purpose of the unposed photograph was to preserve evidence of identification, which is "real evidence" of an identity that existed before the police came on the scene. - This must be distinguished from participation in a line-up, which requires an intentional act by the accused giving rise to evidence emanating from the accused. R. v. Campbell [1993] B.C.J. No. 2752 Wood, J.A.; Legg and Lambert JJ.A. (con). *Final Level Property search- Home (Knocking) R. v. Boersma [1993] B.C.J. No. 2748 Lambert J.A.; Taylor and Prowse JJ.A. (con). * Affirmed at SCC Property search- Home – perimeter search - Police officers approached the accused’s residence and knocked on the front door. - When the door was opened, potentially stolen property was visible inside the house. -Upon entering the house, more stolen goods were recognized and the accused was arrested. - Two police officers discovered a road barred by a padlocked chain. - The accused was beyond the fenced area. - The police crossed over the fence, approached the accused, and discovered marijuana cultivation in progress. - They arrested the two people cultivating the marijuana. - The cultivation was taking place on Crown land adjacent to land over which the father of one accused asserted ownership or occupancy rights. - Charter, ss. 8, 24(2); - Criminal Code, s. 686(1)(a). - (1) Did the knocking and seizure constitute a violation of s. 8 of the Charter? • YES - (2) Should the evidence be excluded? • NO - Charter, ss. 8. 24(2). - (1) Did the police breach the accused’s reasonable expectation of privacy? • trial judge said YES • court of appeal said NO (2) Should the evidence be excluded? • NO - Ref. to Duarte (applied) - (1) The knock and the seizure violated the reasonable expectation of privacy to which the occupants were entitled in their own home. - Since the police had no warrant, the search was unreasonable. - (2) However, despite the violation of s. 8 of the Charter, the evidence should be admitted pursuant to s. 24(2) of the Charter (related to the broader public interest) - Admitting the evidence wouldn’t bring the administration of justice into disrepute. - Ref. to Kokesch (police must act in good faith when conducting search). - Ref. to Mellenthin. - (1) There can be no reasonable expectation of privacy on Crown land that is accessible to everyone. - The accused did not possess the land and there was therefore no reasonable expectation of privacy. - There is a different reasonable expectation of privacy with regard to activities being carried on in a private house than there is for activities being carried out in the open air and particularly in the open air on Crown land. - (2) There was no breach of reasonable expectation of privacy and therefore no breach of s. 8 of the Charter. - It is therefore not necessary to do a s. 24(2) analysis. - Ref. to Kokesch (private dwelling vs. Crown land). - Ref. to Plant (dignity, integrity, and autonomy of the accused not affected). 41
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