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) (NB C.A.) Ryan J.A.; Turnbull and Larlee JJ.A. (con). * Final Level negotiator in the course of a hostage taking. • YES Surveillance - wiretap R. v. Legere 1994 CanLII 3851 (NB C.A.) Ayles J.A.; Angers and Hoyt JJ.A. (con). * Final Level (application for reconsideration dismissed by SCC) Search of the person/Identity – DNA - Tissue paper used by the accused while at the police station was discarded by the accused in a wastepaper basket and subsequently retrieved and sent for DNA analysis. - Head and pubic hair samples were taken from the accused without consent. - Charter, s.8. - (1) Was the seizure of the tissue paper unlawful? • NO - (2) Was the seizure of the head and pubic hair unlawful? • YES - (3) Should the evidence be excluded? • NO - (1) The accused no longer had a reasonable expectation of privacy in materials he had abandoned; therefore, the material was “gathered”, not “seized.” - (2) The forceable taking of ‘parts’ of a person is contrary to s.8. - (3) Factors in deciding whether or not to exclude evidence include: • What kind of evidence was obtained? This was real evidence that existed irrespective of the Charter violation. (As distinguished from conscripted evidence – e.g. self-incrimination conscripted through confession – which is contrary to the right against self-incrimination). • What Charter right was infringed? No resistance offered and done with minimal intrusion. • Was the Charter violation serious or merely of a technical nature? The violation was not technical. However, in view of the need to obtain information for the investigation, the violation was minimal. • Was the violation deliberate and flagrant or was in committed in good faith? The police acted in good faith, following an Ontario Court of Appeal case that held this was not unlawful (even though there was a N.B. Court of Appeal decision to the contrary). • Did the violation occur in situation of urgency or necessity? Police needed the information to conduct DNA analysis and there was no other way to proceed without getting the accused’s consent. • Were other investigative techniques available? A sample of blood or hair is needed to conduct DNA analysis. • Would the evidence have been obtained in any event? No. • Is the accusation serious? One of the most serious (murder). • Is the evidence essential to substantiate the charge? Seized hair samples were important, if not essential, to substantiate the charge. • Are other remedies available? In this case, no. - (4) Admitting the evidence would not bring the administration of justice into 52
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) disrepute. Police were not engaged in unacceptable conduct – they had satisfied themselves that they were engaged in a lawful seizure incidental to an arrest. - Ref. to Collins and Dyment NS COURT OF APPEAL R. v. LeClaire 2005 NSCA 165 Roscoe J.A.; Cromwell and Freeman JJ.A. (con). * final level Property - Home (perimeter search) - Police see a door leading from the accused’s garage to his living area. -They enter the open garage and see a man through the door window. - Police knock on the door, advise the accused that they are investigating an impaired driving complaint and ask if they may enter house. - They are invited in. - Charter, s.8. - (1) Did entering through the garage door violate s.8? • NO - There is an implied license for members of the public and police to approach the door of a residence and knock. - In the case of the police, the purpose of the approach will be determinative as to whether conduct falls within the ‘implied invitation to knock.’ If police simply wish to communicate or are conducting an investigation then they’re within the implied license. If, however, police approach to gather evidence or determine whether suspected evidence becomes apparent when the door is opened then they’re not within the implied invitation to knock. (SCC Evans) - The distinction is based on the fact that one can refuse to answer questions - nothing is unwittingly disclosed. - Evans has been applied in several similar cases concerning entering onto the property in connection with drunk driving suspicions. - A direct route to the door is required. Police may not take a trespassory detour to use their senses (sight/smell) to gather evidence. - When police first entered the home they engaged the accused in ‘open-ended’ conversation. They had no grounds for arrest until they observed the condition of the accused and he acknowledged that he had been driving. - The implied invitation to knock applies only to places where one can conveniently knock. - Ref. to Evans R. v. Wood 2001 NSCA 38 Roscoe J.A.; Hallett and Cromwell JJ.A. (con). * final level Identity – Records - A barrister provided financial records to the Law Society as part of a regulatory process. -The records were subsequently seized under a warrant and used against the barrister at trial. - Charter, ss. 7 and 8. - (1) Was the accused’s reasonable expectation of privacy (per ss. 7 and 8) violated? • NO (2) Should the evidence be excluded? • NO - (1) The accused was required, as a condition of practising law, to provide documents to the Law Society upon request. These records were accessed under a lawful warrant. There is little, if any, reasonable expectation of privacy in business records required to be maintained as a condition of practising law. - (2) The Court also found that if there were a breach of s.8 the records would not be excluded under s.24(2). - Ref. to Hunter (purpose of s. 8). 53
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Complete Cases Chart - Supreme Court of Canada - On the Identity ...

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