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. Nicholson [1990] 53 C.C.C. (3d) 403 Toy J.A,; MacDonald and Locke JJ.A. (con). *Reversed SCC Home Search (perimeter search) R. v. Donaldson [1990] 58 C.C.C. (3d) 294 Hinkson J.A.; Legg and Wood JJ.A. (con) * Final Level Surveillance Wiretap/ Procedural Fairness doctor, the police requested that the samples not be destroyed, obtained a search warrant, and seized the blood samples.. - Suspecting the accused was purchasing fertilizer for narcotics purposes, police examined his garage. - Police made small holes in the doors, windows and roof vents of the garage. They observed plants growing under lights and then obtained search warrants to enter the home. - The accused asked to speak to a lawyer but agreed to wait until his children were removed. - During this period the accused initiated a conversation with police and made several incriminating statements. - Insider trading was revealed when the RCMP obtained search warrants based on information obtained through authorized intercepted private communications. - The phrase "reliable, confidential source" was used to obtain the warrants when, in fact, the source wasn’t reliable. - Charter, ss. 8, 10(b), 24(2); -Criminal Code; - Narcotic Control Act, ss. 4(2), 6(1), 10(1) (a) [rep. and sub. 1985, c. 19, s. 200(1)] -- now R.S.C. 1985, c. N-1. - Charter, ss. 8, 24(2); - Criminal Code, ss. 178.16(1)(b), 762(1) (a), 189(1)(b), 312, 423(1)(d), 487(1)(b), and 830(1)(a). - (1) Was the search tainted by the earlier warrantless searches and did it constituted an unreasonable search and seizure? • NO - (2) Should the evidence obtained on the search and the incriminating statements be excluded at trial? • NO - (1) Were the police deceptive in acquiring the warrant and thus violate s. 8 of the Charter? • YES - (2) Should the evidence be excluded? • YES - (1) No warrant was required to search the garage. - Under s. 10 of the Narcotic Control Act an officer may enter and search any place other than a dwelling without a warrant where he reasonably believes a narcotic is present whose presence would constitute an offence. - (2) A garage is not a dwelling-house. The manner of the surveillance was not unreasonable and property damage was minimal. - Ref. to Kokesch (one's expectation of privacy must give way to the government's interest in advancing its law enforcement goals; the perimeter search of external boundary of dwelling house was not unreasonable even though the police officers were trespassers). - Ref. to Hunter (s. 8 protects a person’s reasonable expectation of privacy and police need a warrant to conduct a search). - (1) The information given to the Justice of the Peace was misleading: the normal interpretation of “reliable source” would be that the information had come from an informant, not a wiretap. - (2) Admitting the evidence would have brought the administration of justice into disrepute because it would condone police misconduct. 46
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) FEDERAL COURT OF APPEAL Canada v. Norwood 2001 CanLII 22155 (F.C.A.) Strayer J.A.; Sexton and Sharlow JJ.A. (con). * Final Level Identity – Records Ruby v. Canada (Solicitor General) (C.A.) [2000] 3 F.C. 589 Létourneau J.A.; Robertson, Sexton JJ.A. (con). * Affirmed SCC - A Revenue Canada auditor was conducting an audit in the building of the audited corporation. - The auditor entered the private office of one of the company’s accountant (when the accountant was out of town) to use the telephone. -The auditor saw a file for the corporation, opens it, and photocopied notes made by the accountant in an interview with a client. - These facts were not disclosed to the accountant or the client. - Certain governmental organizations (the RCMP, CSIS and the Department of External Affairs (DEA)) refused access to (or in some cases refused to confirm or deny the existence of) personal information held in their databases. - Charter s.8, s.24. - (1) Did taking and photocopying the accountant’s notes constitute an unreasonable search and seizure in violation of s.8? - Charter s.7 and 8; - Privacy Act, s.51; - Access to Information Act. • YES (2) What is the remedy under s.24? • Exclude the notes as evidence. - (1) Do the mandatory provisions of the Privacy Act (s.51) with respect to in camera and ex parte hearings contravene ss. 7 and 8 of the Charter? • NO - (1) Even though the accountant’s notes recording personal information attract a low reasonable expectation of privacy, there is nevertheless some expectation of privacy which protects against the secret taking of information without notice, request or consent. - Because the section of the Privacy Act in question is merely procedural, the liberty interest is not engaged. - In obiter, the Court noted that ss. 7 and 8 may be engaged by other sections of the Act; a corollary to a reasonable expectation of privacy is a reasonable expectation of access (if only to verify accuracy). Identity – Records Gernhart v. Canada (C.A.) [2000] 2 F.C. 292, Sexton J.A.; Rothstein and Noel JJ.A. (con). * Final Level Identity – Records - In an appeal regarding an income tax assessment the Minister of National Revenue is required transmit to the Tax Court copies of all returns, notices of assessment, notices of objections and notifications that were relevant to the appeal. These then became available to the public at large. Charter s.8 and s.1. - (1) Does the transfer of documents pursuant to the section constitute an unreasonable seizure? • YES - (2) What is the appropriate remedy? • Strike down the section. - (1) A low reasonable expectation of privacy exists in income tax returns; however, this small degree would be shattered if tax records were revealed to public at large. Consequently, the section violates s.8 and is not saved under s.1. - Note that the section had not changed in many years and the Court took note of the changing environment: • “Since photocopies could not be easily made until approximately twenty years ago, subsection 176(1) was simply a benign method to provide adjudicators with information about tax disputes that they were due to hear. • In his factum, counsel for the Minister also conceded that "the impugned provision . . . has by reason of developments in the social, technological and 47
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Complete Cases Chart - Supreme Court of Canada - On the Identity ...

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