S. 8 Flashcards
R. v. Garofoli, [1990] 2 S.C.R. 1421
- Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.
- The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.
- After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.
- After the determination has been made in (3), the packet material should be provided to the accused.
- If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.
- If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.
R. v. Keshavarz, 2022 ONCA 312
• Can exclude fruits of compliant search if they are causally, contextually, or temporally connected to another Charter breach. • Abandonment: If you abandon something –> no REOP • If abandoned, can it be excluded if it’s related to ANOTHER Charter breach? -> YES. • Look at 24(2) analysis first – abandonment is not a bar but a factor in assessing the (contextual) connection. o 24(2): 1. Was it obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter? 2. If yes -> would it bring the admin of justice into disrepute?
• Accused abandoned Glocks, had no relationship with them when seized, therefore no REOP, therefore can’t exclude them on the 10(b) breach.
R. v. Abdoulkader, 2022 ONCA 354
Deficient ITO? Standard is not “could warrant be issued” rather “reasonable grounds to believe”.
Peel Regional Police Service v. Latanya Grant, 2022 ONSC 287
• A search warrant to search a specific location for specific things confers on the those executing it the authority to conduct a reasonable examination of anything at that location: R. v. Vu, 2013 SCC 60 at paras. 23 and 39
o But cellphone is more private – needs a second warrant (which was granted and is being challenged)
• Review of second warrant (28-31) – were there reasonable grounds? (YES)
o ITO contained sufficient grounds to believe that the search of the phone sought would afford evidence.
• Test to set aside VALID SW (high): “Police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception fraudulent misrepresentation or the like” R. v. Paryniuk, at para. 69.
R. v. Feizi, 2022 ONCA 517
‘Minor’ or ‘technical’ refers to the nature of the error in an ITO, not the importance of the topic to which it relates.
R. v. Ali, 2022 SCC 1
• If strip searched incident to arrest, must be reasonable and probable grounds for arrest and search.
o Concealment of weapons or evidence supports this.
R. v. Bzezi, 2018 ONSC 170 | s. 8
• Looking in a window and smelling at a traffic stop =/= search
o Visual look during traffic stop is proper (Gonzales 2017 ONCA 543 at 56)
o HTA s. 216 -> can stop to check licenses
o Reduced expectation of privacy in lawful MV stops (R. v. Harrison, 2009 SCC 34 at paras. 30 and 31)
R. v. Noor, 2022 ONCA 338 | s. 8
Plainview firearm =/= search
• During a struggle accused reached for something, he was overcome for officer safety and firearm was observed and then seized incident to arrest for possession of firearm.
R. v. Tim, 2022 SCC 12
• Police conducted four searches, after seeing hidden legal pill, which revealed fentanyl, other drugs, ammo, and a firearm.
• S. 8 breach – mistake of law – not a defence
(Later kept in on 24(2) analysis)
• Would not bring administration into disrepute.
• Can exclude fruits of compliant search if they are causally, contextually, or temporally connected to another Charter breach. (Same as Keshavarz!)
o If remote or tenuous -> no 24(2) trigger.
• SECOND search was lawful incident to INVESTIGATIVE detention (for collision) BUT everything was connected/same transaction or course of conduct so it triggered 24(2).
• A warrantless arrest is permitted pursuant to ss. 495(1)(a) and (b) of the Criminal Code when the arresting officer subjectively has reasonable and probable grounds for the arrest, and those grounds are justifiable from an objective viewpoint.
R. v. Smith, 2022 ONCA 439
- Traffic stop for drugs
- Item thrown into car
- Grounds to search vehicle incident to arrest
R. v. Stairs, 2022 SCC 11
• [82] In summary, a search of a home incident to arrest for safety purposes will
comply with s. 8 of the Charter when the following requirements are met:
- The arrest was lawful.
- The search was incident to the arrest. The search will be incident to arrest when the following considerations are met:
a) Where the area searched is within the arrested person’s physical control at the time of the arrest OR
b) The area is sufficiently proximate to the arrest — the police must have reason to suspect that the search will further the objective of police and public safety, including the safety of the accused. - Where the area searched is outside the arrested person’s physical control at the time of the arrest — but the area is sufficiently proximate to the arrest — the nature and the extent of the search must be tailored to the purpose of the search and the heightened privacy interests in a home.
R. v. Chow, 2022 ONCA 555
AirBnB owner does not have a reasonable expectation of privacy in a rental unit during the rental period.
