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)
Hallett J.A.; Freeman
and Pugsley JJ.A.
(con).
* affirmed SCC
Property – Home
(Perimeter search)
(warrantless)
R. v. MacLennan
1995 CanLII 4340 (NS
C.A.)
Freeman J.A.; Roscoe
and Chipman JJ.A.
(con).
* final level
Vehicle Search
R. v. Kouyas
1994 CanLII 3962 (NS
C.A.)
Hallett J.A.; Chipman
and Freeman JJ.A.
(con).
* affirmed SCC
Property Search –
Games Room
office.
- Several machines were
visible from the customer
waiting area.
- Police saw them and thought
they were illegal.
- They did not have a warrant
to be on the property.
- A car was stopped because a
passenger was not wearing a
seat belt.
- Police smelled alcohol.
- The driver was accompanied
to the police cruiser and, once
the officer confirmed the
accused smelled of alcohol,
the accused was asked to take
a breathalyser test.
- Police entered a public
games room while
investigating a complaint
about rowdy youths who were
drinking/taking drugs adjacent
to the games room.
- While in the games room
police saw and seized illegal
gambling machines.
202(1)(b).
• NO
- (2) Should the evidence be excluded?
• NO
- Charter, ss. 8 and 9. - (1) Was the accused’s reasonable
expectation of privacy violated?
• NO
- Charter, s.8. - (1) Was the seizure contrary to s.8?
• NO
• the business premises were open to the public and the illegal machines were in
plain view (see R v. Chang). Furthermore, there was evidence that the taxi stand
was open to the public and the public could play the games.
- (2) Since there was no violation of s.8, s. 24(2) wasn’t discussed.
- Ref. to Hunter (purpose of s. 8; protects reasonable expectation of privacy).
- Ref. to Collins
- (1) The indicia of the accused’s impairment were passive emanations of odour,
speech and movement. In these circumstances, there was no improper intervention
by the officer that violated a reasonable expectation of privacy.
- The accused knew he could be asked to produce his documents if he drove his
vehicle on a highway, and that in doing so he might be requested to approach a
police cruiser. Knowing that, he voluntarily consumed the alcohol and then chose to
drive on a highway. Constables Byrne and Merrell protected Mr. MacLellan, his
passenger through their alert police work.
- Ref. to Hunter (s. 8 only protects a reasonable expectation of privacy).
- (1) There is no reasonable expectation of privacy in public areas of games rooms
during business hours.
- There is a reasonable expectation of privacy with regard to non-public areas of the
business. Although not necessary (given the reasonable expectation of privacy
finding), the Court considered the plain view doctrine, which permits warrantless
searches of private possessions if three conditions are met:
1. police must make a lawful intrusion or properly be in a position to view;
2. incriminating evidence must be discovered inadvertently (as opposed to
being known in advance and using the plain view doctrine as pretext); and
3. it must be immediately apparent “that the items they observe may be
evidence of a crime, contraband, or otherwise subject to seizure.”
Facts of this case bring the police officer’s activity within the plain view doctrine.
- Ref. to Hunter (whether a search is reasonable or not).
R. v. Patriquen
[1994] N.S.J. No. 573
Roscoe, J.A.;
Chipman, J.A. (con);
and Pugsley, J.A.
- Acting on a tip, the police
saw 100 marijuana plants.
-Without a warrant, they
visited the property a second
time to take photographs.
- They returned a third time to
- Charter, ss. 8, 24(2);
- Narcotic Control Act, ss.
4(2), 6(2), 10.
- (1) Did the accused have a reasonable
expectation of privacy with respect to the land
on which they were growing marijuana (and
were their s.8 rights therefore violated?
• NO
- (1) The land was secluded and surrounded by woods in a rural area. The
expectation of privacy on privately-held woodlands is not substantially different
than that on Crown land (see Boersma).
- This is because woodlands in rural areas are in some respects subject to inspections
by members of the public at large.
- Therefore the accused had no reasonable expectation of privacy and there was no s.
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