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)
R. v. Neill
[1993] 33 B.C.A.C.
118
Taggart J.A.; Wood
and Gibbs JJ.A. (con).
*Final Level
Property search-
Home
(Perimeter Searches)
R. v. Blinch
1993 CanLII 1433
(BC C.A.)
Rowles J.A.;
Southin and Legg
JJ.A. (con).
* Final Level
Property Search -
Home
- A police officer received
information from an
informant that marijuana was
being grown on the accused’s
premises.
- The officer's believed the tip
was reliable based on
previous interaction with the
informant.
- The officer walked onto the
accused’s property to check
the house number and he
observed that the basement
windows were blocked.
- Finding this suspicious, the
officer obtained a warrant to
search the premises.
- Based on information
provided by a neighbour, the
accused’s wife fears her
husband will kill himself,
their kids and his in-laws.
- The neighbour, who had
been authorized to enter the
premises by the accused and
his wife, granted police
access/entry to the accused’s
residence.
- Police obtained a search
warrant and seized wills,
guns and ammunition.
– They did not disclose in the
application for a warrant that
police had previously entered
the property.
- The appellant seeks to have
the handwritten wills
excluded from evidence.
- Charter, ss. 8, 24(2). - (1) Did the police violate s. 8 of the Charter
by walking onto the accused’s property to
check the house number?
Charter, s.8.
• NO
- (1) Did the warrantless search violate the
accused’ s.8 rights?
• YES
- (2) Was the failure to disclose the
warrantless search sufficient to vitiate the
search warrant that was subsequently issued?
• NO
- (3) If the search warrant wasn’t vitiated,
should the evidence be excluded under 24(2)?
• NO
- (1) There could be no expectation of privacy in a house number so no infringement
of the accused's rights under the Charter occurred.
- The officer's conduct in walking parallel to the front of the house and looking
down the side of the house while leaving the premises was no more than a most
insignificant trespass.
- The officer went on the premises to confirm the residential address rather than to
conduct a perimeter search.
- Ref. to Kokesch (evidence obtained through a Charter breach invalid; boundaries
of a perimeter search of home; facts of two cases compared).
- Ref. to Hunter (purpose of s. 8; Hunter standard).
- (1) Warrantless searches are presumed unreasonable.
- The search was not otherwise authorized by statute. The neighbour who provided
access could not waive the accused’s rights.
- At issue was the validity of “consent searches” without a warrant. This was
recognized as an area not well developed in the case law.
- (2) Police learned nothing new when they entered but rather confirmed what the
neighbour had told them. Her information would have been sufficient for the
issuance of warrant.
- If a Justice of the Peace is misled then the warrant will be vitiated (and admitting
evidence obtained in such circumstances would bring the administration of justice
into disrepute).
- (3) Factors (following Collins):
• trial Fairness;
• “real” evidence obtained in violation of Charter will “rarely operate unfairly for
that reason alone”;
• the seriousness of the Charter violation: Court must discourage egregious police
conduct. Factors in determining seriousness are whether the violation was
deliberate, wilful or flagrant, or committed in good faith; whether the violation
was motivated by urgency or necessity to preserve evidence; and whether other
investigative techniques were available.
- In this case police conduct not egregious because: police faced an urgent need for
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