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)
legal field become a historical aberration."
• He admitted "that there is a troublesome appearance arising from the
requirements of subsection 176(1) of the Income Tax Act" in that the Minister
provides documents to the Tax Court in the absence of the other party.
• In oral argument, it was again conceded that subsection 176(1) did not serve any
useful purpose. Nevertheless, it was argued, the mere fact that legislation does
not keep pace with the times "does not make it violative of Charter values."
(paras 37 and 38)
Smith v. Canada
(Attorney General)
2000 CanLII 14930
(F.C.A.)
Judgement of the
Court: Decary, Sexton
and Evans.
* Affirmed by SCC
Identity – Records
Schreiber v. Canada
(Attorney General)
(C.A.)
[1997] 2 F.C. 176
Linden J.A.; Henry
J.A. (con); Stone J.A.
(dis).
* Reversed by SCC
Identity – Records
Del Zotto v. Canada
(C.A.)
[1997] 3 F.C. 40,
MacGuigan J.A.;
- The plaintiff left Canada
while on Employment
Insurance in violation of
program requirements. At the
border on his return he filled
out a form for Canada Customs
(CCRA).
- That information was shared
with the Canadian
Unemployment Insurance
Comission.
- Without judicial
authorization, the Crown
requested information from
the Swiss government about
the accused’s Swiss bank
account.
- Section 231.4 of the Income
Tax Act permits the Minister
to authorize an Inquiry into
anything relating to the
administration or enforcement
- Charter, s.8. - (1) Is there a reasonable expectation of
privacy in customs declaration forms with
respect to cross matching with unemployment
records?
• NO
- Charter, s.8. - (1) Must the Canadian standard for the
issuance of a search warrant be satisfied
before the Minister of Justice and the Attorney
General submit a request to search and seize
banking records and documents in a foreign
jurisdiction?
- Income Tax Act, S.
231.4;
- Charter, s.7 and s.8.
• YES
- (1) Does the section of the Income Tax Act
that permits an Inquiry to be established
infringe s.8?
• YES
- Ref. to Hunter (purpose of s. 8; protecting reasonable expectation of privacy).
- (1) “The nature of the information, the relationship between the appellant and other
returning Canadian residents and Customs, the place and manner in which the
disclosure of E-311 information was made and the seriousness of the offence under
investigation, that the appellant and other Canadian residents returning to Canada by
air … cannot be said to have held a reasonable expectation of privacy in relation to
their E-311 information disclosed to the Commission, which outweighs the
government's interest in enforcing the laws disentitling unemployment insurance
claimants from receiving benefits while outside of Canada. The disclosure of E-311
information in this case is not in violation of section 8 of the Charter.” (para. 4)
- (1) The respondent was the subject of a Canadian criminal investigation by
Canadian authorities and the information obtained could be used in a criminal
prosecution in Canada.
• Although the bank accounts were not in Canada (and therefore subject to laws
and authorities over which the Charter would have no application), the privacy
interest was jeopardized by the letter of request that was initiated in Canada.
• Therefore prior authorization is necessary for a lawful search and seizure. S.8
protects people not places and the right to be secure against unreasonable
searches contemplates pre-authorization since privacy, once lost, cannot be
restored.
- Ref. to Hunter (purpose of s. 8; protects only reasonable expectation of privacy).
- Ref. to Plant (informational privacy; protecting core biographical info).
- Ref. to Kokesch (police acting in good faith when conducting search).
- MacGuigan (Henry concurring): A subpoena that orders the appearance and
production of documents violates a reasonable expectation of privacy. There is a
reasonable expectation of privacy in documents held by others. Concern that person
who might be subject to criminal proceedings might be required to appear.
- Strayer (dis): There is no basis for declaring the section invalid. Relative to a
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