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) 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 48
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) Henry J.A. (con); Strayer J.A. (dis). * Reversed by SCC Identity – Records of the Act. - The Inquiry can lead to summoning and enforcing attendance of witnesses, and compelling them to give evidence. - In this case, Noble would have been compelled to produce documents belonging to Del Zotto. - (2) What is the appropriate remedy? • Strike the section down. search, a subpoena does not result in a major privacy intrusion. There is a presumption that no expectation of privacy attaches to the documents and if there it does and a violation of s.8 would occur, this can be raised with the hearing officer and, if necessary, judicial review. - Ref. to Plant (core biographical information). - Ref. to Hunter (warrantless search presumed to be unreasonable; s. 8 only protects a reasonable expectation of privacy) MB COURT OF APPEAL R. v. Guiboche 2004 MBCA 16 Freedman J.A.; Kroft and Monnin JJ.A. (con). * Final Level (leave to appeal dismissed by SCC) - The accused was found and arrested in his father’s house. -He was not living in his father’s house. - At the time of the arrest, police searched the room in which the accused was found. - Charter, s. 8. - (1) Did the search and seizure in the room violate s.8? • NO - (1) The accused had no reasonable expectation of privacy in the room because it was not his dwelling place (which would be subject to a reasonable expectation of privacy). - Ref to Edwards (totality of circumstances test). Property – Home (perimeter search) R. v. Campbell 2003 MBCA 76 Scott J.A.; Hamilton and Freedman JJ.A. (con). * Final Level - In the context of an investigation, the accused’s car was stopped and the accused was asked to provide his driver’s licence. - Charter, s.8; -Highway Traffic Act. - (1) Did the requirement to produce a driver’s license violate s.8? • NO - (1) Requiring the production of a driver’s license for inspection (under the Highway Traffic Act) is not a search within the meaning of s.8 because it does not violate a reasonable expectation of privacy. - Ref. to Plant (contextual approach). - Ref. to Kokesch (evidence obtained through Charter breach not admissible). Vehicle Search R. v. Lamirande 2002 MBCA 41 Scott J.A.; Philip and Monnin JJ.A. (con). - While being transfered from one custodial facility to another, the accused was searched and papers and documents were seized. - Charter, s.8. - (1) Did the search and seizure of documents and papers violate s.8? • NO - (1) The accused had no reasonable expectation of privacy in the context of admission to the custodial facility. - Ref. to Plant (contextual approach; dignity, autonomy and integrity of individual). - Ref. to Edwards (totality of circumstances). - Ref. to Hunter (warrantless search presumed to be unreasonable). 49
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Complete Cases Chart - Supreme Court of Canada - On the Identity ...

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