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) 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). 44
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) *Final Level Property search - Home - Perimeter McPherson v. Institute of Chartered Accountants of British Columbia [1991] 55 B.C.L.R. (2d) 286 Anderson, J.A.; Hollinrake and Cummings JJ.A. (con). *Final Level Identity/Search of Person; Records R. v. Lunn [1990] 61 C.C.C. (3d) 193 Hinkson J.A.; Taggart and MacFarlane JJ.A. (con). *Final Level Identity/Search of Person (Blood Sample) viewed inside. - The officer was not asked whether he had a warrant to search, nor was he questioned regarding the reasons for his being on property or whether he had authorization to enter. - The appellant was arrested and shortly thereafter a search warrant was obtained to enter the house, where four prints were found. - The bylaws of the Institute of Chartered Accountants establish a random practice review program (including “the making and taking away of documents”). - The program was challenged as violating ss. 7 and 8 of the Charter because of its vague and unknown standards, which make it impossible for one to defend against a charge of incompetence. - The accused was involved in an accident as a result of which is wife was killed. - He was taken to hospital where blood samples were taken for medical purposes. - He refused an officer's request for blood samples. -Two days later the police called the hospital to enquire whether it had blood samples. After obtaining an affirmative answer from a - Charter, ss. 7, 8. - (1) Does the random review process violate a person’s reasonable expectation of privacy? • NO - Charter, ss. 7, 8., 11(d). - (1) Did seizing the blood samples after the accused refused to provide one constitute a violation of s. 8 of the Charter? • NO - (1) Taking into account all relevant factors, the random review procedure enunciated in the bylaws did not offend the Charter. - Ref. to Hunter (purpose of s. 8; reasonable expectation of privacy must be breached for there to be unreasonable search and seizure) - (1) The doctor was not an agent of the state in responding to the officer's inquiry, therefore the Charter does not apply to him. - Even if it did, however, the officer didn’t request material evidence against the accused, he only asked for information regarding the blood sample. -There is therefore no breach of s. 8 of the Charter. - Ref. to Dyment (regarding the need for consent from the accused when taking his bodily substances). 45
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Complete Cases Chart - Supreme Court of Canada - On the Identity ...

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