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. Pelland [1997] CarswellOnt 965 Catzman, Labrosse and Moldaver JJ.A. * no history - Police made a secret voice recording of the accused while he was detained and used it for voice identification purposes. - Criminal Code, ss. 278.1, 278.2., 509 and 699; - Charter, ss.7, 8, 24(2). - (1) Did the recording violate s.8? • NO - (2) Should the evidence be excluded? • NO - Ref. to Hunter v. Southam (reasonableness criteria). - Ref. to Wong (video surveillance offensive without prior judicial approval). - Ref. to Plant (s.487 parallels s.8 protection of information privacy interests). - (1) The voice is a physical characteristic. The voice sample was therefore innocuous and did not implicate the appellant in criminality. - There is no reasonable expectation of privacy in the sound of one’s voice. - (2) The accused didn’t object to having this evidence admitted at trial so he can’t try to exclude it on appeal. Identity – Records R. v. Monney [1997] 105 O.A.C. 1 Rosenberg J.A.; Morden J.A. (con); Weiler J.A. (dis). *reversed - SCC Search of Person – Body, Urinalysis - The accused was detained at the airport upon re-entry into Canada because he was suspected of having swallowed narcotics. - Officers were unaware of the correct procedure for dealing with people who have swallowed narcotics. - The accused was strip searched and consent to provide a urine sample was coerced through the threat of continued detention. - Customs Act, s. 98; - Charter, ss. 7, 8, 9, 10, 24(2). - (1) Did the strip search violate s.8? • YES - (2) Should the evidence be excluded? • YES - (1) The strip search was not authorized by s. 98 because it was not conducted within a reasonable time. - Where a detention is unlawful, so too is a resulting seizure (here the urine). - Grounds to arrest must exist in order to justify such an intrusion and interference with a traveller’s liberty and reasonable expectation of privacy. -According to LaForest in Wong, the question is not whether a person who swallows drugs to smuggle them can expect to be detained for a lengthy period, but whether a traveller to Canada can reasonably expect a lengthy detention and close monitoring of bodily functions. The reasonable expectation of privacy remains at a level above this even when reduced due to border issues. - Dissent (Weiler): One’s reasonable expectation of privacy regarding a urine sampling is not different from that regarding a frisk search (Gibs in Fieldhouse). - (2) Because of the seriousness of the violations, the evidence is to be excluded. R. v. Joyce (R v. Kennedy) 1996 CanLII 3040 (ON C.A.) - Police searched the accused’s garbage because he matched the description of a murder suspect. - Charter, ss. 7, 8. - (1) Did the search violate s. 8 of the Charter? • NO - Ref. to Collins (conditions for a reasonable search per Lamer). - (1) The accused had no reasonable expectation of privacy with respect to his abandoned garbage. Morden J.A., Weiler J.A. and Rosenberg J.A. * final level Home search – 68
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) (without warrant) R. v. Belnavis 1996 CanLII 4007 (ON C.A.) Doherty J.A.; Osbourne and Austin JJ.A. (con). *Affirmed SCC Vehicle Search - The accused was driving a car with a U.S. license plate and was speeding. - Police pulled the car over and found garbage bags full of stolen goods. - The accused was arrested based on a warrant for outdtanding traffic fines. - Charter, ss. 8 and 24(2). - (1) Was the vehicle search an arbitrary detainment and did it violate s.8? • YES - (2) Should the evidence be excluded? • NO - (1) Belnavis had a reasonable expectation of privacy with respect to the vehicle and the search was therefore not authorized by law. - Belnavis' arrest on a warrant for the outstanding traffic fines justified her continued detention and could have justified the towing of the vehicle back to the police station. It could not, however, justify a search of the vehicle, since a search could only be said to be incidental to an arrest if it served some purpose connected to the arrest. - (2) There was no element of self-conscription in the procural of the material from the car. The material pre-existed the Charter breach and did not emanate from Belnavis. - Belnavis was lawfully detained throughout. - The admission of this evidence did not render the trial unfair, even if it was obtained based on an unconstitutional search. R. v. Maffei 1994 CanLII 300 (ON C.A.) Brooke, Finlayson and Austin JJ.A. * final level Identity/search of the person – Blood Samples R. v. Edwards [1994] 88 O.A.C. 321 McKinlay J.A.; Finlayson J.A. (con); Abella J.A. (dis). * affirmed SCC Property – Home - The accused caused a fatal car crash. - He was taken to hospital and, while there, a doctor took a blood sample. - Police seized the samples and used them as evidence against the accused. - The police searched the home of a suspect’s girlfriend. - They seized drugs and arrested the girlfriend. -The suspect (the appellant) was driving with a suspended license and was later arrested. - Without a warrant, police - Charter, ss. 8, 24(2). - (1) Did the police’s taking of the blood sample violate s. 8 of the Charter? - Narcotics Control Act, s. 4(2). - Charter, ss. 7, 8, 9, 10(b), 24(2). • NO (2) Should the evidence be excluded? • NO - (1) Did the seizure of the phone/pager violate s.8? • NO (with regard to the appellant, but the girlfriend has standing to challenge). - (2) Should the evidence (drugs in the apartment) be excluded? - Ref. to Kokesch (police must act in good faith when conducting a search). - Ref. to Edwards (totality of circumstances test). - Ref. to Hunter (s. 8 protects reasonable expectation of privacy; a warrantless search is presumed to be unreasonable). - (1) The blood sample came into existence for legitimate medical purposes and, as such, was real evidence that existed prior to, and irrespective of, the subsequent seizure and resulting Charter breach. - (2) The police officer acted conscientiously and in good faith in pursuing his investigation and any breach of the appellant's Charter rights was inadvertent. - The administration of justice is not brought into disrepute by admitting into evidence the test results of the blood samples. - (1) The existence of a reasonable expectation of privacy depends on a contextual analysis of the totality of the circumstances. - The Court supports the trial judge’s finding of reasonable and probable grounds to arrest the accused for drug possession. (The trial judge found a violation of the girlfriend’s rights, but not of those of the appellant since he had no reasonable expectation of privacy in his girlfriend’s apartment). - Dissent (Abella): There is a s.8 violation and the evidence should be excluded. The couple’s three year relationship affords the appellant a reasonable expectation of 69
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Complete Cases Chart - Supreme Court of Canada - On the Identity ...

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