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) R. v. Blais [2004] 181 O.A.C. 81 Rosenberg J.A.; Weiler and Borins JJ.A. (con). * final level Search of Person – Property R. v. Mohamad [2004] 181 O.A.C. 201 Cronk J.A; Laskin and Moldaver JJ.A. (con). * final level Property – Vehicle (Personal Property inside) R. v. Major [2004] 188 O.A.C. 159 Rosenberg J.A.; Laskin and Aitkin JJ.A. (con). * final level - SCC leave to appeal dismissed search because it would have set off the metal detector. - A small quantity of marijuana was found and the accused was arrested. - Following arrest and incarceration, Blais’ personal belongings were seized. - The belongings were searched twice by detectives. - A key that was among the possessions was later seized under warrant. - A suspicious vehicle at customs led to the search of another vehicle. -The other vehicle, unlocked and stolen, contained an unlocked briefcase nd this was searched. - Heroin and marijuana were found in a “family visit unit” trailer within a penitentiary. -The seizure led to a charge of possession with intent to traffic. - Correctional Services provide the trailers to afford privacy). - Criminal Code, s. 186(2); - Charter, ss.8 and 24(2). - Criminal Code, ss. 4(3)(b); 738(1)(a); - Charter, ss.8 and 24(2). - Corrections and Constitutional Release Act, S.C. 1992, c. 20 s. 52, 58; - Charter, ss. 7, 8, 24(2). - (1) Did the search violate s.8 of the Charter? • NO - (2) Should the evidence be excluded? • NO - (1) Did the search violate s.8? • NO - (2) No discussion of s.24(2). - (1) Did the search and seizure violate s.8? • YES - (2) Should the evidence be excluded per s.24(2)? • NO - (1) The search warrant was obtained appropriately. The appellant’s expectation of privacy was that the state would preserve the goods and return them upon the appellant’s release. - One’s reasonable expectation of privacy is greatly reduced in belongings that have been seized by police (see Grant). - Ref. to Edwards (factors to consider for reasonable expectation of privacy). - (2) – The search was conducted in good faith: the officer was attempting to comply with the law. - (1) There is as lesser expectation of privacy (of the physical person) in a car than in one’s home/office (R. v. Caslake). - Owners of briefcases generally have a reasonable expectation of privacy in the contents of their briefcases - even if the briefcase is stolen. - Thus, the requirements for a valid search of the briefcase were met. - Ref. to Hunter v Southam (purpose of s.8). - Ref. to Edwards (“contextual analysis of the totality of the circumstances”). - (1) Although there is a reduced expectation of privacy in a prison setting, there was a subjective expectation of privacy in the units. They were locked, were for the purpose of sleeping, and children were present. The subjective expectation was judged objectively reasonable (see Conway v. A-G of Canada). - The trial judge had considered the unit a “cell”, and privacy is therefore subject to the terms of the prison’s legislation. - (2) However, drug trafficking is a very serious offence and admitting the evidence would not affect the fairness of the trial. Prison – Surveillance R. v. Serendip Physiotherapy Clinic - A physiotherapy clinic was trying to defraud an insurance - Criminal Code, s. 487; - Charter, ss.7 and 8. - Ref. to Edwards: (what constitutes a reasonable expectation of privacy” on “the totality of the circumstances”). - (1) Did the search and seizure violate s.8? - (1): Serious intrusions into privacy are justified if there are reasonable grounds that the records sought will afford evidence about the commission of the offence. 60
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) [2004] 192 O.A.C. 71 Rosenberg J.A.; Armstrong and Blair JJ.A. (con). * final level - SCC leave to appeal refused Identity – Records withheld R. v. Tessling [2003]168 O.A.C. 124 Abella J.A.; O’Connor A.C.J.O and Sharpe J.A. (con). *reversed SCC (leave to appeal) Property – Home; Surveillance – FLIR company and was not providing all the necessary records. - Health records were seized by police who were seeking allegedly fabricated and falsified information. - On the strength of information gained from two informants, police used FLIR technology to obtain a thermal image of the home of the accused. • NO - (2) No discussion of s.24(2). - Charter, ss.8 and 24(2). - (1) Did the search and seizure violate s.8? • YES - (2) Should the evidence be excluded? • YES - The Application Judge noted the universal concern for privacy with regard to health records. - S.487 of the Criminal Code balances private/public rights. - It was not confidential health information that was sought, but evidence of fraud. - Ref. to O’Connor (reasonable expectation of privacy re records held by 3 rd parties). - Ref. to Dyment (serious nature of intrusion into health record). - Ref. to Hunter v. Southam ((in Dyment) where it’s feasible to obtain prior authorization, such authorization will be considered a pre-condition). - (1) The appellant had a reasonable expectation of privacy in activities carried on within his residence. FLIR violated this expectation. No reasonable expectation of privacy exists for heat emanating from a home, but here the information revealed activities within the house. - Ref. to Edwards (two-step s.8 test). - Ref. to Plant (no reasonable expectation of privacy re records held by a third pary; core biographical information; electricity consumption records fall outside this protection and are accessible to the public). - Ref. to Kelly (reasonable expectation of privacy from low-level aerial surveillance). - Ref. to Hunter v Southam ((in Evans) s.8 applies where a reasonable expectation of privacy has been diminished by an investigatory technique). - (2) The FLIR technology revealed activities inside the home beyong what would be detectable by normal observation or surveillance. - The search warrant was not lawfully obtained. - This will enhancee public confidence. 144096 Canada Ltd. v. Canada (Attorney General) [2002] 168 O.A.C. 201 Morden J.A.; Borins and Simmons JJ.A. (con). * no history - Six aircraft were in storage temporarily “for the winter”. - Canada Customs seized and stored the six aircraft and later another, on the basis of a breach of the Customs Act. - The appellant alleges that the aircraft were damaged while improperly stored. - Customs Act, s. 106(1) (any action must be brought within 3 months), a.129 (challenge to seizure); - Crown Liability and Proceedings Act, s.3(b); - Charter, s.8. - (1) Did the seizure violate s.8? • NO - (2) No discussion of s.24(2). - Ref. to Kyllo v. US. - (1) There was no material on record to support a reasonable expectation of privacy. - The action commenced two years after the incident but the limitations period would actually have begun after the action was commenced (not from date of seizure but from date of the end of storage). - Appeal allowed (except Charter issues dismissed). - Custom Officer’s malice and intent to injure bring issue outside scope of a.106(1). 61
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