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)
Property Search
R. v. Anderson
[2002] 155 O.A.C. 216
Cronk J.A.; Moldaver
and Feldman JJ.A.
(con).
*final level – SCC
refused leave to
appeal
- Several years’ worth of he
respondent’s personal
journals were seized.
- The seizure was under
warrant.
-The journals were used
against the respondent on
sexual assault and weapons
charges.
- Criminal Code, s.
686(4)(b)(i);
- Charter, ss. 7, 8, 11(c)
and (d).
- (1) Did the search and seizure violate s.8?
• NO
- (2) No ruling under s.24(2) as respondent
did not seek to have journals excluded on s.8
grounds.
- (1) Reasonable expectation of privacy re journals wasn’t argued. The focused was
on the s.7 argument. S. 8 issues may be brought up in a new trial.
- (2) Appeal allowed. Acquittals set aside and new trial ordered.
Identity – Records
R. v. Dore
[2002] 162 O.A.C. 56
Feldman J.A.;
Doherty and Simmons
JJ.A. (con).
* no history
Property Search –
Home (not owner)
R. v. B. (E.)
[2002] 154 O.A.C. 167
Cronk J.A.; Moldaver
and Feldman JJ.A.
(con).
* final level – SCC
leave to appeal
refused
- The accused was charged
with rape and his fingerprints
were taken at the scene of the
crime.
- The fingerprints were
retained in the police system
even though the rape charges
were withdrawn.
- The accused’s diary was
used as evidence in a sexual
assault case.
- Identification of
Criminals Act, s. 2(1);
- Criminal Code, ss. 278.1-
278.91, ss. 278.3(1) and
(2);
– Charter, s.8.
- Criminal Code, s.278.3,
s.278.1-278.91;
- Charter, s. 8.
- (1) Did keeping the fingerprints on file
violate s.8?
• NO
- (2) No need to consider s.24(2).
- (1) Did using the diary violate s.8?
• YES
- (2) No discussion of s.24(2).
- (1) Fingerprinting is an invaluable tool of criminial investigation.
- A significant loss of personal privacy is to be expected when arrested for a serious
crime on reasonable and probable grounds (Hunter v. Southam).
- Anything associated with one’s body, especially where not normally accessible, is
of a personal and confidential nature.
- The practice in other common law countries reflects a recognition that an acquitted
person may retain an interest in maintaining the privacy of their fingerprint
information (Scotland; New Zealand; Tasmania; some states in the US).
- Ref. to Plant (core biographical information; contextual factors to consider).
- (1) According to s. 278.1 of the Criminal Code, personal journals and diaries are
“records” containing personal information for which there is a reasonable
expectation of privacy (legislative response to O’Connor).
- This reasonable expectation limits the scope of permissible questioning but
doesn’t preclude all questioning regarding the diary.
- Ref. to Plant (diaries reveal intimate details of life/choice).
- Ref. to Mills (unsuccessful use victom’s psychiatric records in a sexual assault
case).
Identity – Records
R. v. D'Amour
2002 CanLII 45015
(ON C.A.)
Doherty J.A.; Carthy
- The accused was receiving
welfare while actually
working.
-By not informing the welfare
authorities, she was
- Charter, ss. 7, 8, 11(c),
13, 24(2);
- Criminal Code, s. 380.
- (1) Did police obtaining the documents
violate s. 8?
• NO
- (1) The s. 8 claim failed as D'Amour had no reasonable expectation that the
Department would not co-operate in the criminal prosecution of an allegation of
fraud against the Department, and that the documents would be provided to police in
such an investigation.
62