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) (not owner) R. v. Silveira [1994] 69 O.A.C. 296 Griffiths J.A.; Carthy J.A. (con); Abella J.A. (dis). *affirmed - SCC Property Search – Home (garage) R. v. Wijesinha [1994] 66 O.A.C. 356 Galligan J.A.; Goodmann and Abella JJ.A. (con). * affirmed - SCC seized and monitored a cell phone/pager found in the girlfriend’s car. - Police conducted surveillance of the appellant, who was suspected of drug trafficking, for several days. - Because they feared evidence would be destroyed, police entered the appellant’s family home without a warrant, in violation of his reasonable expectation of privacy. - The accused was then charged with drug trafficking and possession. - The accused was a lawyer, and was surveilled by a police informant wearing a bodypack recorder. - Narcotics Control Act, s. 10; - Charter, ss. 7, 8, 9, 10(b). - Criminal Code, ss. 139(2), 183; - Charter, ss. 8, 24(2). • NO - Did the search and seizure violate s.8? • YES - (2) Should the evidence be excluded? • NO - (1) Did the recording violate s.8? • YES - (2) Should the evidence be excluded? • NO privacy in the girlfriend’s house and he had his own key. - Ref. to Hunter v. Southam (“reasonableness” in s.8 protection). - (1) Police entered the residence uninvited and without a warrant), therefore the initial entry was a trespass. - (2) The warrantless search was of little detriment to the appellant. - Ref. to Kokesch (factors re admissibility of evidence: manifest culpability of the appellant and a low level of intrusion into reasonable expectation of privacy). - Dissent (Abella): The evidence should have been excluded under s. 24(2) because there was a high reasonable expectation of privacy. Police are to be allowed strategic latitude but not where lawful alternatives are available (enough information existed to obtain a search warrant much earlier). – Ref to Hunter v. Southam (it is rare for individuals to have a low reasonable expectation of privacy). - (1) The Court referred to LaForest J. in Duarte: in microphoning conversations, reasonable expectation of privacy turns on whether the speaker spoke in circumstances where it was reasonable to expect their words would only be heard by the persons being addressed. - Given that the appellant is a former Crown Attorney, he would have a reasonable expectation that police officers would not participate in unlawful activities, suggesting s. 8 may not apply at all Surveillance – Recorder SC of PEI – APPEAL DIVISION Dyne Holdings Ltd. v. Royal Insurance Company of Canada [1996] 135 D.L.R. (4th) 142 Carruthers C.J.P.E.I.; Mitchell, - An insured company sought a declaration that it was entitled to have its insurers defend it in an action commenced by a third party. - According to the insured, the statement of claim alleges the plaintiff suffered personal injury arising out of oral or - Prince Edward Island Rules of Court, 1990, Rule 61.05(1)(c), 61.05(3). - No ruling on s.8 or 24(2). - Ref. to Hunter v. Southam (the existence of a right to privacy consisting of the right to be let alone and to be secure against encroachment upon one’s reasonable expectation of privacy). - Ref. to O’Connor (there currently exists no tort for the infringement of privacy: any legal remedy depends on the circumstances of the case and the conflicting rights involved. Established torts may be given a wider meaning in order to recognize privacy interests). - There is no duty on Commercial, but there is a duty on Royal and Continental, to defend the appellants. 70
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) J.A., MacDonald, C.J.T.D. *final level – SCC refused leave to appeal Identity – Records written publication of material that disparages a person's or organization's goods, products or services and/or violates a person's right to privacy. PQ COURT OF APPEAL R. v. Murray [1999] J.Q. no 1037 136 C.C.C. (3d) 197 Rothman, Fish and Rousseau-Houle JJ.A. * no history Vehicle search R. v. Chahdi [1998] A.Q. no 377 Fish, Rousseau-Houle and Chamberland JJ.A. * no history Identity/search of the person (blood sample) Canada (Procureur général) c. Goodleaf [1997] A.Q. no 2665 LeBel, Mailhot and Proulx JJ.A. - The police set up a roadblock in an effort to apprehend fleeing bank robbers. In the process, the police stopped Murray's truck and found that it contained contraband cigarettes. -Police seized blood-stained clothing from a murder victim's apartment. -They also obtained blood samples from the accused's socks and shoes, and from clothing in the trunk of the victim's car, which the accused was driving at the time of arrest. - The blood matched both the accused and the victim. - Police stopped the accused’s car because she was speeding. - When her car stopped, the accused ran away, leaving her car door open. - Charter, ss. 8, 9, 24(1); - Criminal Code, s. 240(1). - Charter, ss. 8, 10(a), 24(2); Criminal Code, ss. 335, 529.3. - Charter, ss. 8, 24(2); - Excise Act, L.R.C. (1985) c. E-14, s. 163(2). - (1) Did the search violate s. 8 by virtue of being arbitrary? • NO - (2) If there had been a breach, should the evidence have been excluded? • NO - (1) Did the search and seizure in the victim’s apartment violate s. 8? • NO - (2) Should the evidence be excluded? • NO - (1) Did the unwarranted search and seizure violate s.8? • NO (trial judge said YES) - (2) Should the evidence be excluded? - (1) By virtue of their common law powers, the police could lawfully set up a roadblock in the circumstances of this case. - Once the truck was stopped, the officer asked the respondent for permission to look within. This amounted to a warrantless search which was rationally connected to the purpose of the initial detention. The search was carried out in a reasonable manner and did not violate s. 8 of the Charter. - Ref. to Hunter (warrantless searches are presumed to be unreasonable). - Ref. to Edwards (must show the existence of a reasonable expectation of privacy). - (1) The police did not require a warrant to search the victim's apartment as they had received a credible complaint respecting her disappearance. - The accused had no right to privacy with respect to the victim’s apartment. - (2) It is not in the broader social interest to exclude the evidence: exclusion would likely bring the administration of justice into disrepute. - Ref. to Edwards (must show that a reasonable expectation of privacy has been violated). - (1) The officer had reasonable grounds for wanting to arrest the accused and to subsequently search the accused's vehicle. - By abandoning the vehicle, the accused lowered her expectation of privacy with regard to it. - Ref. to Edwards (totality of circumstances). 71
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