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) 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 42
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) information in an explosive situation where human life at risk; and it was not unreasonable for police to assume that neighbour had implied authority (from accused’s spouse) to grant access. - The law regarding s.8 violations on the basis of third-party consents is not well developed. Police action was characterized as a good faith mistake rather than a flagrant disregard for Charter rights. - The offence is serious - many police were required to ensure that lives were not endangered and evidence is needed to convict. Excluding evidence would have a more negative impact on administration of justice than admitting it. Pierre v. Pacific Press Ltd. 1993 CanLII 577 (BC C.A.) Taylor J.A.; McEachern and Goldie JJ.A. (con). * Final Level (Leave to appeal dismissed by SCC) Identity – Records and Photographs R. v. Arason 1992 CanLII 1008 (BC C.A.) Cumming J.A.; Proudfoot and Goldie JJ.A. (con). * Final Level Property Search – Business (perimeter search) -A woman undergoing treatment at rehabilitation centre claimed to have witnessed a murder. - Press interviewed and photographed her at the centre and she subsequently asked a nurse to contact the press to ask them not to disclose her identity. - The press did disclose her identity (name and photos) and that she was a patient at the treatment centre while the killers were still at large. - Police searched the perimeter of a business premises, including the roof. -The accused, who was inside, was not a lessee. -Police looked through the mail box and detected the smell of marijuana coming from an external vent. - The accused was observed visually and with binoculars. - Upon his arrest, the - Crown Liability and Proceedings Act; -Privacy Act; -Charter, s.2(b). - Narcotics Control Act and Criminal Code; - Charter s.8, s.9, s.24(2). - The issues were technical ones concerning the trial judge’s decision to refuse a jury trial. The judge’s decision was based on the fact that: • the case involved novel issues of law that are of an ‘intricate and complex character’ (Supreme Court Rules) and thus not suitable for a jury trial; and • the CBC is immune from jury trials under Crown Liability and Proceedings Act. The Court of Appeal found insufficient arguments to resolve issues of law and set the case down for further hearing. It also found that the CBC not immune. - (1) Was the perimeter search a violation of accuseds’ s.8 rights? • NO - (2) Was the vehicle search a violation of the accuseds’ s.8 rights? • NO - (3) Should the evidence be excluded? - Ref. to Kokesch (boundaries of a perimeter search). - Ref. to Hunter (warrantless search is presumed to be unreasonable). - Although matter was not resolved, the following were issues raised and court’s response: • The plaintiff’s claims concern the infliction of psychological injury (she worried for her safety as perpetrators were at large) and violating the Privacy Act (tort of violation of privacy). • The defendant claims that s.2(b) of Charter (freedom of the press) answers a claim in negligence and under the Privacy Act. The court found that journalists have no special privilege re publishing things that may be harmful and also found that the Charter is no answer under Privacy Act unless there is consent. It is a question of law whether there was a reasonable expectation of privacy in the gathering of information by the press. - (1) The accused had no standing to bring a Charter infringement complaint because they were not the ‘occupants’ of the premises in that they were not lessees or owners. Even if they were ‘occupants’, there is no reasonable expectation of privacy with regard to the perimeter of a commercial premises since the exterior and the parking lot are generally accessible to the public. According to the terms of the lease, even tenants had no right of control of the exterior of the building, including the roof. Looking through the mail box may have been improper, but nothing seen was used. - (2) There were reasonable and probable grounds for the arrest and search; therefore the unwarranted arrest and search were not unlawful. The applicable test is from Storrey (SCC): “An arrest without warrant may be made where the officer 43
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