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) • Final Level (Leave to appeal dismissed by SCC) Identity – Records R. v. Z. (S. M.) 1998 MBCA 18 Philip J.A.; Kroft and Lyon JJ.A. (con). *Final Level -A Vice Principal searched a high school student’s locker and seized drugs. - Charter, s.8. - (1) Did the search and seizure violate s.8? • NO - (1) A student has a significantly diminished reasonable expectation in the school environment, particularly with respect to a locker that has been provided by the school, is shared with another student and has the combination of the lock recorded by the school’s administration (which is at the lower end of the expectation of privacy scale in the school). Additionally, the Vice Principal had valid reasons for wanting to search the locker. Property search – School Locker - Ref. to Hunter (purpose of s.8). NB COURT OF APPEAL Mitchell v. R. 2005 NBCA 104 Robertson J.A.; Deschênes J.A. (con); Richard J.A. (dis). * Final Level Vehicle Search - Police searched the accused’s car and seized drugs found hidden behind the gas cap. - The car was seized and detained after the accused was arrested for obstruction of justice. - Charter, s.8. - (1) Did the search and seizure violate s.8? • YES - (2) Should the evidence be excluded? • YES - (1) A search that is incidental to an arrest can only be made with respect to the purpose for the arrest. - (2) The accused must demonstrate on the balance of probabilities that admitting the evidence would bring to the administration of justice into disrepute. • Factors (following Collins): “(1) determine whether the admission of the evidence would impact on the fairness of the trial; (2) assess the seriousness of the breach; and (3) determine whether the justice system’s repute would be served by the admission of the evidence rather than its exclusion.” (para. 20). • Here evidence not conscripted, therefore trial fairness not affected. • Factors to consider when considering seriousness of the breach: “(1) was the Charter breach serious or of a technical nature?; (2) did it occur in circumstances of urgency or necessity?; (3) was the search obtrusive in nature?; (4) did the accused have a heightened expectation of privacy with respect to the area searched?; (5) was the warrantless search conducted in circumstances where the police had reasonable and probable grounds; (6) could the evidence have been obtained by other investigatory techniques that did not breach the Charter?; and (7) did the police act in good faith?” (para. 21) -While there is a lesser expectation of privacy in a car than in a dwelling or an office, there was no pressing need to search the car without a warrant and the car was in the custody and control of the police. 50
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) -With regard to good faith, the police claimed to have had an honest and reasonable belief that the search was lawful. - As to whether the misunderstanding was reasonable, because the law is settled and has been on the books for 8 years, ignorance of the law cannot be accepted. - Following “Justice Sopinka in R. v. Kokesch, either the police knew or ought to have known the law with respect to a vehicle search that is incidental to an arrest. Clearly the police ought to have known.” (para. 31) - Consequently the police did not act in good faith and evidence is generally excluded in such circumstances. An additional factor is to instil in law enforcement officers and their advisors the need to be vigilant regarding the extent of their lawful authority. (There appeared to be a concern that admitting the evidence negatively influence police conduct in the future). On balance, the administration of justice would be brought into disrepute if the evidence were admitted. R. v. Kelly 1999 CanLII 13120 (NB C.A.) Drapeau J.A.; Turnbull and Larlee JJ.A. (con). * Final Level - The police conducted an unwarranted aerial search by helicopter of the accused’s garden followed by an unwarranted search on the ground. They then seized uprooted marijuana plants. - Charter, s.8. - (1) Did the searches and seizure violate s.8 of the Charter? • YES - (2) Should the evidence be excluded? • NO - Ref. to Plant (core biographical information). - Ref to Kokesch (boundaries of a perimeter search). - (1) The open space adjoining the house (the accused’s garden) was subject to a reasonable expectation of privacy as a ‘curtilage’ of the dwelling (and not part of the ‘open fields’ doctrine). • “As a rule, lawful occupants have an expectation of privacy in all open spaces within their residential lots that is qualitatively sufficent to invest them with s.8 protection against unlawful aerial as well as terrestrial searches.” (para. 50). • The subsequent on-the-ground search was a direct result of the arial search. The unlawfulness of the first search taints the second and makes it unreasonable. Surveillance – aerial search - (2) The evidence was non-conscriptive and its admission would not render the trial unfair. • The factors in favour of exclusion (importance of rights and manner of intrusion) are mitigated by the fact that: (a) the accused was not there at time of search; (b) the search did not involve the residence as such; (c) the accused subsequently consented to a search; (d) the evidence was real and without it there would be no conviction; and (e) the accused is a peace officer (prison guard). • The searches were not a product of deliberate and reckless disregard of rights. R. v. Leaver 1998 CanLII 12205 - Police recorded a conversation between the accused and a police - Criminal Code, s.183; -Charter, s.8. - (1) Was the recorded conversation admissible? - Ref. to Edwards (totality of circumstances). - Ref. to Kokesch (boundaries of a perimeter search). - (1) The accused knew he was speaking with a police negotiator and in these circumstances could not have any reasonable expectation of privacy in the sense that it was a private conversation under s. 183 of Criminal Code. 51
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Complete Cases Chart - Supreme Court of Canada - On the Identity ...

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