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) Search of Person – Body R. v. Crompton Co./CIE [2005] CarswellOnt 5082 Gillese J.A.; Labrosse and Sharpe JJ.A. (con). *final level Identity – Records R. v. Hudson [2005] CarswellOnt 7378 LaForme J.A.; Borins and Juriansz JJ..A. (con). *final level Search of Person – Body United States of America v. McAmmond [2005] CanLII 20 (ON C.A.) Blair J.A.; Laskin and Feldman JJ.A. (con). * no history - The Environmental Protection Act (EPA) provides provincial officers with powers to require certain records be provided. -This case concerned communications regarding a pollution spill (400 litres of cooling tower water were accidentally discharged into a creek. A report was subsequently released stating “No adverse effects are anticipated.”) - The chemical manufacturer refused to provide the requested records. - The respondent was crossing the Canada-U.S. border and was asked to empty his pockets, which he did. -Officials found five counterfeit $50 bills. - Police found the appellant, who was involved in a fraudulent telemarketing scheme, based on wiretapped conversations between other parties. - Environmental Protection Act, s. 92, 156, 184. - Customs Act, s.98; - Charters, ss. 7, 8, 10(b), 24(2). - Extradition Act, s. 29(1); - Mutual Legal Assistance in Criminal Matters Act, s. 17, 18, 20; - Charter, ss. 24(1) and (2). - Appeal dismissed. No discussion of ss. 8 or 24(2). - (1) Did the search violate s.8? • NO - (2) Should the evidence be excluded? • NO (no discussion of s.24(2)) - Appeal of order for surrender and application for judicial review of decision to surrender are dismissed. - No discussion of s.8 or s.24(2). - In deciding one must consider the seriousness of the breach and the effect of exclusion (Collins). - S. 156(3) of the EPA requires that a record be made in a manner that does not intercept any private communications, in accord with reasonable expectation of privacy. - s. 156(2) gives provincial officers the power to compel documents/data during a physical inspection only. - (1) The respondent was familiar with customs inspections. - A pocket search is a “non-invasive routine screening procedure” (not strip/skin search) and no Charter rights breached. - There is a different standard for reasonable searches at the border (see Simmons). -The Court therefore overturned the trial judge, who had ruled the pocket search a s. 8 violation and excluded the evidence. The appeal was allowed and a new trial ordered. - Ref. to Mann (different standard of privacy than for the general public). - (1) There is no reasonable expectation of privacy in conversations other people have about you. 58
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) Surveillance – Wiretap (3 rd party) R. v. A.K.1 [2005] CanLII 11389 (ON C.A.) Moldaver, Gillese, Juriansz JJ.A. * no history Identity – Records R. v. O'Sullivan [2005] CarswellOnt 2477 Weiler, Simmons, Gillese JJ.A. * no history Surveillance – Wiretap - Charges of first degree murder were stayed because the accused had not been tried within a reasonable period of time, as required by s.11(b) of the Charter. -The Crown requested the production of 17 autopsy files from the Coroner’s Office. - It was argued that third party privacy interests ought to be considered. - Police searched an apartment frequented, but not owned by, the appellant. -The appellant had invited police in. - Privacy Act, s. 2(1). - The trial judge was correct in finding that the respondents’ right to be tried within a reasonable time had been breached. Appeal dismissed. - Charter (referred to generally). - NO discussion of s.8 or s.24(2). - Crown possession/control (of records) is not to be equated with a violation of reasonable expectation of privacy (see R. v. Mills). - NO direct discussion of s.8 or s.24(2) - (1) The appellant had no reasonable expectation of privacy in the apartment, even though he sometimes stays overnight. - The fact that the police were invited in negates a claim based on reasonable expectation of privacy. R. v. Campanella [2005] 196 O.A.C. 188 Rosenberg J.A.; Simmons and Lang JJ.A. (con). * no history Search of Person – Body - The accused’s purse was searched at a security screening point at the entrance to a provincial courthouse. - Signs at the public entrances inform that visitors will be searched and warn of the ramifications of possessing illegal articles. -The accused had been through the screening process on previous occasions. - The purse was voluntarily submitted for a manual - Controlled Drugs and Substances Act, s. 4(1); - Public Works Protection Act, s. 3(b); - Police Services Act, s. 137; - Charter, s. 8. - (1) Did the search violate s.8 of the Charter? • NO - (2) Should the evidence be excluded? • NO (although there was no ruling on s.24(2), there was a discussion of exclusion generally, favouring admitting the evidence). - (1) When entering prominent public buildings there is a reasonable expectation of being searched and the appellant was familiar with procedure. - There was no evidence that the search was conducted in an unreasonable manner, or for a purpose unrelated to courthouse security. - (2) In balancing the interests, note that notice was given on a sign at entrance which said that one can refuse to be searched and leave. Alternately, one can transfer non-metallic objects from searchable hand-baggage to a pocket that will not be searched. - Ref. to Hunter v Southam (“reasonableness” to assess constitutionality). 59
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Complete Cases Chart - Supreme Court of Canada - On the Identity ...

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