search and seizure ch 2 Flashcards

Question

Deadman

Answer 1

Assesses roadside breath checks absent supporting legislation (most provinces now have statutory laws governing this) Dedman stopped but refused to cooperate Legality of the demand for a breath sample is brought into question Acquittal overturned by OntCA on consent grounds. SCC rejects OntCA approach to consent consent must be real and voluntary must have sufficient awareness to have waived constitutional rights against search and seizure

Answer 2

R v Wills (1992), 70 CCC (3d) 529 (OntCA) – Interpreted common law consent in the context of Charter s. 8 – When an accused is being asked to waive a constitutional right, fairness demands that the individual make a voluntary and informed decision to permit the search, as he would in the "awareness of consequences" test if he chose to waive the s. 10 (b) right to counsel.

Answer 3

approves Wills, noting (per Iacobucci J.): – In order for a waiver of the right to be secure against an unreasonable seizure to be effective, the person purporting to consent must be possessed of the requisite informational foundation for a true relinquishment of the right. A right to choose requires not only the volition to prefer one option over another, but also sufficient available information to make the preference meaningful. This is equally true whether the individual is choosing to forego consultation with counsel or choosing to relinquish to the police something which they otherwise have no right to take. – The degree of awareness of the consequences of the waiver of the s. 8 right required of an accused in a given case will depend on its particular facts

Answer 4

R v Head (1994), 52 BCAC 121 (BCCA) Donald, J.A. held in light of Borden: it is no longer necessary to apply the six-point test set out in Wills, supra, to determine validity of consent. Rather, the matters to be determined are: – (a) did the accused give his consent voluntarily; and – (b) was he aware of the consequences? These were noted to be largely factual issues for a trial judge to decide.

Answer 5

R v Dhillon, 2012 BCCA 254 – “Both parties agree that Mr. Dhillon’s consent for the search of the trunk of his vehicle was not obtained in a manner required by the long established jurisprudence. The Crown properly concedes this issue. Borden was decided 12 years ago and sets out the requirements for a voluntary consent: (i) the individual must be advised of his right to refuse or withdraw his consent at any time; (ii) the individual must be made aware of the consequences of his consent to the search; and (iii) the individual must be informed of his right to counsel in order to have explained to him the consequences of his consent to the search: Borden at 162. The requirements for an informed consent were not met in this case and accordingly

Answer 6

R v Kennedy (2000), 147 CCC (3d) 144 (BCCA) per Braidwood JA, and R v Erickson (2003), 19 CR (6th) 367 (BCCA) per Saunders JA – However, note R v Bottle, [2004] BCJ No 2642 (SC)

Answer 7

all unlawful searches violate s. 8. intelligence & perimeter search used to develop reasonable grounds warrant obtained perimeter search found to be unlawful when the grounds fall, the warrant falls ancillary powers doctrine not applicable – discounted out of hand

Answer 8

Police “knock-on” procedure Entry onto premises by an implied license? – Why not? An olfactory search? – Why? Purpose of the police = evidence gathering

Answer 9

Cory J assumes the Charter applies to school searches for drugs, but not same standards as police a warrant is not required for school reasonable grounds are required, but not r+p being minimally intrusive and carried out in a sensitive way age and gender Students have a “diminished” expectation of privacy Major J (dissent) – the teacher was acting as an agent of the state, therefore Hunter applies

Answer 10

R v M(MR) (1998)(SCC) Suspected drug dealer taken into the office and the police are called Vice principal about to search as the police arrive. The police watch as the vicep. searches, finding a bag of marijuana Police arrest

Answer 11

R v Chehil (2013)(SCC) – Use of a drug detection dog at an airport – Trial: acquittal; CA: new trial; SCC: appeal dismissed – Police must have a reasonable suspicion that evidence will be discovered Totality of the circumstances Particularized conduct or evidence Profiling can produce suspicion Reliability of a particular dog is relevant in assessing whether the search was conducted reasonably

Answer 12

Companion case to Chehil; drug dog case Strong defence in the 5:4 decision was concerned that the facts did not reveal a reasonable suspicion, but rather was closer to a generalized suspicion Car driver was sweating, he was trembling, and his carotid artery was throbbing

Answer 13

Admin/Reg Searches BC (Securities Comm’n) v. Branch (1995) (SCC) “the greater the departure from the criminal law, the more flexible will be the approach to the standard of reasonableness” “context” affects the level of expectation of privacy

Answer 14

Police use of FLIR technology No reasonable expectation of privacy being violated

Answer 15

Police seizure of garbage in garbage can just inside property line Doctrine of “abandonment” “he abandoned his privacy interest when he placed his garbage for collection at the rear of his property where it was accessible to any passing member of the public.”

Answer 16

Belnavis and Lawrence (1997)(SCC) search of a vehicle does a driver have an expectation of privacy? a passenger? a passenger who is the spouse of the driver? a passenger on an extended journey?

Answer 17

R v Nolet (2010)(SCC) – Search of a sleeping compartment in a tractor-trailer unit “Even rudimentary living quarters are subject to an objectively reasonable expectation of privacy. In the case of truck cabs, the level of expectation is necessarily low. Commercial trucking is a highly regulated industry and commercial drivers are well aware of the police authority to conduct random stops and to search a vehicle for evidence of infractions.”

Answer 18

-Accused rented a locker at the Winnipeg bus depot. security guards detected a strong odour of marijuana coming from the locker. -Security guard found it and brought police to check, arrested for possestion and purpose of trafficking Trial: evidence excluded for s. 8 violation; accused acquitted. -Man.C.A.: overturns and convicts S.C.C.: restores trial acquittal. -There was no search warrant, thought had enough sufficiant ground without need for warrant. Accused had reasonable expectation of pivacy, bought a key for it -Held: The existence of a master key does not destroy the expectation of privacy. While it is not as high as the privacy afforded to one's own body, home or office, a reasonable expectation of privacy existed in the locker sufficient to engage the accused's s. 8 Charter rights, evidence must be excluded -Analysis of the two searches: 1. the guards were not thhe police 2. police needed warrant, violate s 8. Unanimous

Answer 19

Child pornography found on a computer used by a high school teacher (at the school). A reasonable, albeit diminished, expectation of privacy exists in an employee’s computer at work. Even if policy permits the employer access to computers used by employees, this does not allow the employer to turn over these computers to the police.

Answer 20

Car stop Officer smells “freshly burnt marijuana” Searches the driver’s pockets and finds $5400 in small bills Arrests for “possession” Search of vehicle turns up 100 g cocaine Charged with PPT – convicted CA upholds; SCC affirms

Answer 21

Personal Privacy Territorial Privacy Informational Privacy Is this a workable framework? Should it be hierarchical?

Answer 22

The doctrine: duty = powers requisite to that duty R v Colet (1981)(SCC) The leading case on ancillary powers in Canada was: Dedman v R (1985)(SCC) Now, see: R v Mann (2004)(SCC) – Discussed in the context of investigative detention (Ch. 6) Sometimes referred to as “the Waterfield doctrine”

Answer 23

Search with warrant provisions: – s. 487 – the general power – s. 487.1 – telewarrants And held by the day s. 2 “…it would be impracticable to appear personally before a justice to make application…” s. 29- must bring warrant. R v Cornell, [2010] 2 SCR 142

Answer 24

reasonable grounds to believe that there is in a building, receptacle or place… (a) anything on or in respect of which any offence…has been or is suspected to have been committed… (b) anything that…will afford evidence… (c) anything…used for the purpose of committing any offence… (c.1) any offence-related property may at any time issue a warrant authorizing… (d) to search…and to seize it…

Answer 25

Controlled Drugs and Substances Act, 1996, s. 11. – generally: a warrant procedure to be used, – search the person, s. 11(5) – no warrant needed in exigent circumstances, s. 11(7)

Answer 26

telewarrant

Answer 27

A search is not a fishing expedition. How can we tell if a warrant is deficient? Some important factors: – Grounds of belief? – Evidence being sought?

Answer 28

If based on an informer, the reliability must be apparent – A tip by itself is insufficient – Totality of the circumstances (degree of detail, source of informer’s knowledge, indicia of reliability) No ex post facto justifications – Basis for issuance founded on reliable information – ITO should be clear and concise -Full and frank disclosure; accurate and candid information; avoid tricky language -Obliged to reveal unconstitutional steps in the investigation -Fraud, non-disclosure, misleading information, unconstitutionally obtained facts, new evidence, omission of material facts are all relevant to review

Answer 29

Highlights the importance of referring to the correct offence. Computer technician seeing links to child pornography in favourites of a client’s computer did not give rise to evidence supporting a search being able to produce evidence of downloaded child pornography (ie. possession, as alleged: s. 163.1(4)), but rather may be pertinent to a charge of accessing (s. 163.1(4.1))

Answer 30

-Police got warrant to search houseevidence of theft of electricity. Found a grow op and also computers and a cell phone. -Trial judge excluded the computer evidence acquitting the accused; BCCA overturned and declared the evidence admissible at a new trial. -SCC upholds the BCCA decision, but finds the ITO deficient. -warrant does not provide specific authorization to search computers, they may seize the computer, and do what is necessary to ensure the integrity of the data. If they wish to search the data, however, they must obtain a separate warrant.” Code: s. 487.3, 487.2

Answer 31

police informer privilege exists in crime stoppers cases accused will never get the desired information inconsistent with Hunter? Note s. 487.3 – part of anti-gang legislation, but of general effect.

Answer 32

Police are conducting a search (for the purposes of s. 8) when they record a private conversation Types of wiretap warrants: – Consent interceptions – Non-consent (no party) interceptions – Emergency interceptions – Video surveillance and tracking devices

search and seizure ch 2 Flashcards

(56 cards)