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)
Moldaver J.A.;
Osborne A.C.J.O and
Rosenberg J.A. (con).
* no history
Property Search –
Home
which was gated and fenced,
without a warrant.
- They seized marijuana from
the cornfield.
- Criminal Code, s. 41;
- Trespass to Property Act,
ss.2 (1)(a)(i) and (ii); (b);
3(1) (a) and (b);
- Charter, ss.8 and 24(2).
• YES
- (2) Should the evidence be excluded under
s.24(2)?
• NO
- The rights of a property holder to be free from police intrusion can be restricted
only by powers granted in clear statutory language.
- An “open field” is different from a private dwelling (see R. v. Patriquen).
- Property holders have an expectation of privacy in unoccupied lands. They have
the right to exclude the public from their property even where visible to public.
- (2) After balancing the severities, the marijuana must be admitted, but evidence
taken from the home is to be excluded.
-Admitting the evidence won’t affect the fairness of the trial.
R. v. Lauda
[1998] 106 O.A.C. 161
Borins J.A.;
McMurtry C.J.O. and
Abella J.A. (con).
* affirmed SCC
Property Search –
Home
R. v. Nicolosi
[1998] 110 O.A.C. 189
Doherty J.A.; Brooke
and Charron JJ.A.
(con).
* final level
Property – Vehicle
Corp.of the Canadian
Civil Liberties Assn.
v. Canada (A-G)
[1998] 111 O.A.C. 51
- Police received informant
information (an aerial
photograph) that unused
farmland was being used to
grow marijuana.
- This led to subsequent
inspection of the land without
a search warrant and visual
surveillance for 5 days.
- Cannabis and marijuana
cultivation was found.
-At trial the accused was
acquitted when the evidence
was excluded.
-The Crown appeals.
- As part of a routine search,
police impounded and then
searched an unlicensed motor
vehicle.
- An unregistered gun was
found and then seized.
- CSIS surveillance
techniques used to investigate
“activities” that are “threats
to the security of Canada”.
- Criminal Code, ss. 487,
487.01.
- Charter, ss.8 and 24(2).
- Highway Traffic Act, ss.
221 (1) and (2).
- Charter, ss.8 and 24(2).
- Cdn Security Intelligence
Service Act. ss. 12, 21, 26;
- Charter, ss.7, 8.
- (1) Did the search and seizure violate s.8?
• YES
- (2) Should the evidence be excluded?
• NO
- (1) Did the search and seizure violate s.8?
• NO
- (2) Should the evidence be excluded?
• NO
- Appeals dismissed and cross-appeal allowed.
- No discussion of s.8 or s.24(2).
- Ref to Edwards (factors to apply to establish a reasonable expectation of privacy -
surrounding circumstances).
- (1) The trial judge found that a trespasser has a reasonable expectation of privacy
while cultivating a property.
- According to s.24(2), appellate courts owe deference to lower courts on
admissibility of evidence decisions (R. v. Grant)
- (2) The trial judge erred in excluding the ecidence under s24(2). He failed to
sufficiently consider the relevant factors as laid out in Collins (police surveillance as
‘least intrusive type of search’; not a private dwelling; plants visible from aerial
view or people using the farm).
- Ref. to Edwards (totality of circumstances).
- (1) The reasonableness of police conduct is judged based on the circumstances.
- The fundamental importance of licensing in regulating motor vehicles legitimizes
state power to remove all improperly licensed vehicles from the roadway. Police
conduct therefore fell within the statute.
- Ref. to Edwards (totality of the circumstances).
- Ref. to Collins (facts applies; search is constitutional where authorized by law and
both the law and the search are reasonable).
66