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)
accused’s keys were seized,
allowing entrance to his van.
- Police searched the van a
second time after arresting
the accused and a hydro bill
was seized.
NO
believes on reasonable and probable grounds that the accused has committed an
indictable offence and where such grounds are objectively justifiable. He need not
establish a prima facie case for conviction before arresting.”
-“A search may occur before or after formal arrest as long as the grounds for the
arrest exist prior to the search. A police officer is entitled to make a reasonable
search of the person arrested and the place where he is arrested. See R. v. Debot,
(1986), 30 C.C.C. (3d) 207 (Ont. C.A.) at 233. Specifically, police officers are
entitled to search an accused and the car driven by him which is in the immediate
surrounding area as an incident of lawful arrest. See R. v. Speid (17 September,
1992) [sic] (Ont. C.A.) [since reported, (1991), 8 C.R.R. (2d) 383], leave to appeal
refused, May 7, 1992).”
- (3) The police were acting in good faith, there was no capriciousness, and the
warrant could have been issued based on the circumstances. Excluding the evidence
is more likely to bring the administration of justice into disrepute than admitting it.
R. v. Jopowicz
1992 CanLII 815
(BC C.A.)
Hollinrake J.A.;
Legg and Rowles
JJ.A. (con).
* Final Level
Surveillance -
wiretap
- An undercover police
officer taped a conversation
using a concealed recording
device.
- The recordings were made
in the accused’s place of
business, which he owned,
and in the undercover
officer’s car.
- Charter, s.8. - (1) Did recording the conversation without a
warrant violate the accused’s s.8 rights?
• YES
- (2) Should the evidence be excluded?
• NO
- Ref. to Kokesch (boundaries of a perimeter search; police must act in good faith).
- (1) It was conceded that the recording was an unreasonable search and seizure
(violation of s.8).
- (2) The onus is on the accused to establish that admitting evidence would bring the
administration of justice into disrepute.
-Following Duarte and Wiggins:
• Police acted in good faith regarding their understanding of the law (they
thought one-party consent was sufficient for taping).
• Police could have obtained judicial authorization – they had reasonable and
probable grounds, not mere suspicion. If there were no reasonable/probable
grounds it would bring the administration of justice into disrepute to admit the
evidence.
- There was some discussion of the need to exhaust other investigative techniques
before applying for judicial authorization to tape conversations.
R. v. Ericson
[1991] B.C.J. No.
3763
McFarlane J.A.; Legg
and Hollinrake JJ.A.
(con).
- On suspicion of having
stolen 33 pieces of art from a
gallery, the police conducted
a warantless search of the
outside of the appellant's
residence from which
suspected stolen art could be
- Charter, ss. 8;
- Criminal Code, R.S.C.
1985, c. C-46, ss. 355.
- (1) By searching the perimeter of the
accused’s house without a warrant, did the
police violate s. 8 of the Charter?
• YES (based on Kokesch)
- Ref. to Hunter (s. 8 protects reasonable expectation of privacy).
- (1) Although the search violated s.8, it was conducted in good faith, and given the
accused's extensive criminal record, the trial judge properly considered the
protection of the public to be a dominant factor.
- Ref. to Kokesch (evidence obtained through Charter breach invalid; police must
act in good faith).
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