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) (dis). * Affirmed SCC Home search – Perimeter search find the respondents watering the crop. -Police then arrested the respondents and seized the marijuana plants. -There was never any warrant to enter onto the land. - (2) Should the evidence be excluded? • NO 8 breach. - (2) It was necessary to enter the lands to corroborate the information received and, having done that, police then had reasonable and probable grounds to obtain a warrant. Police did not do so because they did not understand that it was required and there was no evidence of bad faith. Therefore, the evidence should be admitted. - The Court adopted an American approach to the privacy expectations in information kept by third parties and found that there is no reasonable expectation of privacy in computer records of electricity consumption, since the records did not contain personal and confidential information. One of the factors taken into account in coming to this conclusion was that the records of energy consumption were "subject to inspection by the public at large." R. v. Brogan 1993 CanLII 3237 (NS C.A.) - Records of the accused’s hydro consumption were obtained under warrant. - Charter, s.8. - (1) Was there a violation of s.8? • NO - Ref. to Plant (core biographical information). - Ref. to Kokesch (police must act in good faith). - Ref. to Hunter (purpose of s. 8; protects reasonable expectation of privacy). - (1) There is no reasonable expectation of privacy in hydro records. - Ref. to Plant (facts compared; core biographical information). Pugsley J.A.; Clarke and Freeman JJ.A (con). * Final level Property - Home (hydro records) ON COURT OF APPEAL R. v. D'Silva [2006] CarswellOnt 154 Doherty, Sharpe and Juriansz JJ.A. * final level - The police conducted a warrantless search of the accused and found stolen goods that had been given to him as collateral for a debt. - He was charged with possession of stolen goods. - Charter, s.8. - (1) Was there a violation of s.8? • NO - (1) There is no reasonable expectation of privacy with regard to the information gathered during the initial warrantless search. Although there was a reasonable expectation of privacy regarding an ID number from inside a compartment of one of the jet skis, this was not relied on to obtain the search warrant, and as such the warrantless search did not intrude on the accused’s reasonable expectation of privacy. Property Search – Home 56
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) R. v. A. M. [2006] CarswellOnt 2579 Armstrong J.A.; Goudge and Blair JJ.A. (con). * final level Surveillance - Sniffer Dog - Police used a “sniffer” dog to search a high school student’s backback on school property. The principal and staff were unaware of the search. - Youth Criminal Justice Act; - Charter, ss.8 and 24(2). - (1) Did the search violate s.8? • YES - (2) Should the evidence be excluded pursuant to s.24(2)? • YES - (1) The Court refered to Hunter v. Southam: a warrantless search is prima facie unreasonable. - The dog was found to be a physical extension of the handler (they were directly/immediately connected). - The Court also refered to Tessling and does not conclude that a dog sniff is not a search. The use of a sniffer dog is distinguished from the use of FLIR imaging). - A student’s backpack should be afforded the same respect as an adult’s briefcase and there is therefore a reasonable expectation of privacy with regard to the contents (see R. v. Mohamed). - The Court affirmed the trial judge’s decision (Collins test). - (2) This constituted a serious breach. “[T]his was a warrantless, random search with the entire school body held in detention. It was not authorized by either the criminal law or the Education Act and subsidiary school policies. The breach was serious. As the trial judge said: To admit the evidence is effectively to strip A.M. and any other student in a similar situation of the right to be free from unreasonable search and seizure.” R. v. Clarke [2005] CarswellOnt 1806 Sharpe J.A.; Simmons and Laforme JJ.A. (con). *final level – SCC refused leave to appeal - Police followed a drunk driving suspect into the private underground parking lot of his apartment building. -They then conducted a search based on the smell of alcohol on the accused’s breath. - Charter, s.8. - (1) Did the search violate s.8? • NO - (2) Should the breathalyser evidence be excluded? • NO . - (1) If police are entitled to stop a suspect’s vehicle on the street, they are entitled to pursue the suspect into his garage. One does not have the same reasonable expectation of privacy in one’s parking garage as in one’s dwelling. - This reverses the finding of the lower court with regard to both the s.8 violation and exclusion. - (2) The breathalyser evidence is admissible. Identity – Records R. v. Byfield [2005] CanLII 1486 (ON C.A.) Rosenberg J.A.; Weiler J.A. and Pardu J. (con). *final level - Police observed the accused letting a prostitute into his vehicle. - They then searched him and found drugs. - Charter, ss.8, 9, 24(2). - (1) Did the search violate s.8? • YES - (2) Should the evidence be excluded? • YES - (1) The search went beyond what was required to mitigate the officer’s safety concerns. - Iindividuals have a reasonable expectation of privacy in the contents of their pockets. - (2) The Court reverses the trial judge’s decision (errors: trial judge lacked benefit of SCC decision in Mann with regard to reasonable expectation of privacy in pockets), although it found that the admission of evidence would not affect the fairness of the trial. 57
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Complete Cases Chart - Supreme Court of Canada - On the Identity ...

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