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)
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
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