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)
Charron, J.A.; Abella
and Austin JJ.A. (con).
* final level – SCC
refused leave to
appeal
Surveillance
R. v. Laurin
[1997] 98 O.A.C. 50
Morden A.C.J.O.;
McKinlay and Laskin
JJ.A. (con).
* no history
Surveillance – Visual
R. v. Noseworthy
[1997] 100 O.A.C. 76
Austin J.A.;
McMurtry and
McKinley JJ.A. (con).
* final level
Property – Home
(Warrant)
- Police received a phone call
tip regarding marijuana
cultivation.
- Police surveiled the house
from outside locations close
to the appellant’s basement
apartment, and observed
visual and olfactory evidence
of cannabis cultivation,
which led to a conviction for
cultivation and possession.
-The appellant seeks to
determine whether the police
observations were a
warrantless search.
- A search warrant for the
accused’s home was issued
under s.487, the judicial
power to issue an anticipatory
search warrant.
-Many items were seized.
- Narcotics Control Act, ss.
6(1) and 3(1);
- Charter, ss.8 and 24(2).
- Criminal Code, s. 487.01.
- Charter, ss.8 and 24(2).
- (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
- (1) With regard to the appellant’s side yard, the appellant had no right to exclude,
but officers had no right to be there.
- The appellant’s reasonable expectation of privacy was infringed by police because
they had no right to be on the property and make observations through the window
from 2 inches away.
- There is no reasonable expectation of privacy regarding smells emanating from
one’s apartment into the hallway.
- The court referred to an American case which found a diminished expectation of
privacy of residents of multiple occupancy dwellings (La Fave, U.S.).
- (2) There are three broad categories for exclusion (Collins).
- The justice system is brought less into disrepute by admitting the evidence than
excluding it.
- Ref. to Hunter v. Southam (objective of s.8).
- Ref. to Plant (cultivation of marijuana is a serious offence).
- Ref. to Edwards (totality of circumstances).
- Ref. to Kokesch (where a warrant is obtained through a Charter violation, the
evidence can be excluded under s.24(2).
- Under s.487.01(4), where a reasonable expectation of privacy exists, a judge
issuing a warrant is to impose terms and conditions to ensure respect of privacy “as
much as possible”.
-The Court determined that the trial judge’s narrow interpretation of the
authorization of anticipatory search warrants in s.487.01 is inconsistent with the
purpose and legislative scheme of the provision: “Parliament intended in s. 487.01 to
create a flexible power that would be available in a broad range of investigative
circumstances provided that:
(a) the Hunter v. Southam reasonableness criteria are met;
(b) granting an order is in the best interests of the administration of justice;
(c) interference with bodily integrity is not permitted; and
(d) no other provision can be used to authorize the order.”
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