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)
and Laskin JJ.A. (con).
* final level
Identity/Search of
Person; Records
R. v. Hurrell
[2002] 161 O.A.C. 248
Moldaver J.A.; Cronk
and Gillese JJ.A.
(con).
*leave to appeal
allowed – SCC
Property Search –
Home
committing fraud.
- The department asked for
T4 slips and police then
obtained these documents.
- A search warrant was
executed at the appellant’s
home and weapons and
ammunition were seized.
- Criminal Code, s.
117.04(1);
- Charter, ss.7, 8, 24(2).
- (2) Should the evidence be excluded?
• NO
- (1) Did the search and seizure violate s.8?
• YES
- (2) No ruling on s. 24(2).
- Ref. to Plant (core biographical information).
- Ref. to Edwards (totality of circumstances test).
- Ref. to Hunter (purpose of s. 8).
- (1) The Charter is to be interpreted in light of the context in which a claim arises
(Wholesale Travel).
- The approach by McLachlin in Winko is useful here: the less of a threat one is to
society, the less authority the criminal law has to restrict one’s liberty in the name of
protecting public safety.
- s. 177.04(1) needs a constitutional overhaul. Ref. to Hunter v. Southam
(information given on oath).
- Do police have too much discretion under s. 177.04(1) in deciding when to invade
an individual’s reasonable expectation of privacy?
- The requirement for reasonable grounds to exist and be presented was lacking.
R. v. Dhillon
[2002] 161 O.A.C. 231
Laskin and Gouge
JJ.A.; Weiler J.A.
(con).
* no history
- Following an improper
photographic lineup, an
eyewitness testified about a
gunman.
- Cell-mate testimony
corroborated a confession.
- Criminal Code, s.
686(1)(b)(iii).
- No discussion of s.8 or s.24(2) of the
Charter.
- (2) The search warrant was quashed and seized items returned of seized items.
- A new trial was ordered (based on an error in instructions about the evidence).
- There was a reasonable expectation of privacy regarding the appellant’s
communication with his cell-mate.
Identity – Photo
R. v. Briggs
[2001] 149 O.A.C. 244
Weiler J.A.; Austin
and Borins JJ.A. (con).
* final level – SCC
refused leave to
appeal
Search of Person –
DNA Sample
- Police got an order to take a
DNA sample from the
accused.
- What is the reasonable
expectation of privacy in an
offender’s DNA profile?
- Criminal Code, ss.
487.04, 487.052,
487.07(3);
- Charter, ss.1, 7, 8, 24(2).
- (1) No direct discussion of s.8 or s.24(2).
Reasonable expectation of privacy was
discussed in relation to s. 7 of the Charter.
- Appeal dismissed.
- (1) Different reasonable expectations of privacy are afforded to a suspect not
charged vs. a person arrested and charged vs. a person convicted vs. a person subject
to a custodial sentence.
- People have a reasonable expectation that samples taken will only be used for the
purposes for which they are given. Use for a different purpose violates s. 8.
- In deciding to make an order, consider: the existence of a criminal record; the
nature of the offence; circumstances surrounding commission; the impact on
privacy; and security of the person.
- S. 487.07(3) of the Criminal Code: taking of samples is to be done in a manner that
respects the offender’s privacy and is reasonable in the circumstances.
- Ref. to Stillman (reasonable expectation of privacy breached with DNA sample,
accused not convicted).
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