February 10 Lecture

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Woodsworth College Courses
William Watson

WDW325 February 10, 2011 Search and Seizure Lecture 5 RECAP Arrest -arrest powers are in the Criminal Code -police can get a warrant if they have RPG -police can arrest without a warrant if they meet the criteria in s.494 or s.549 of the Code -powers of private citizens to arrest (without a warrant) are more limited Detention -something short of arrest -police need articulable cause -can be the production of physical or psychological restraint EITHER will trigger rights under s.10 of the charter Search and Seizure Section 8 Everyone has the right to be free from unreasonable search and seizure What constitutes a search or seizure? -historically, searches involved only physical property -over time, focus shifted to protecting privacy R. v. Wills (1992 Ont C.A.) breath sample This section stands as a bulwark against unreasonable state sponsored invasions of an individuals privacy. The protection provided by the section is not limited to physical intrusions of recognized property rights, nor to the taking of tangible things. It protects personal privacy interests in their various manifestations. -information is also covered under section 8 of the charter Must havea reasonable expectation of privacy over the placed search or the items seized for s.8 to apply Section 8 can protect the seizure of: -DNA, bodily substances, personal information, private communications (email, phone calls, text messages, pin messages, msn chat), physical items BUT No expectation of privacy = no s.8 protection Reasonable Expectation of Privacy - where and when? R. v. Lebeau and Lofthouse (1988,OCA) FACTS: mens publish washroom at the Silvercreek Park in Guelph -Lebeau was in the third stall with the door closed engaged in sexual activities with another male; others used washrooms during that time (6 to 6:14) -Lofthouse and another male engaged in sexual activities between 4:02 and 4:11pm there were 2 other people standing guard at the front door -charged and convicted under s.157: Every one who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years. NOTE: indecent act need not be sexual; only has to offend community standard of tolerance (R. v. Jacob) -police set up human and video surveillance; had cameras monitoring washroom and recording activities Video recording = seizure of information (images) ISSUES: does s.8 apply? 1. Did they have a reasonable expectation of privacy? 2. Did it matter what they were doing? 3. Is it a reasonable expectation of privacy different from an expectation of avoiding detection? RULING -no reasonable expectation of privacy www.notesolution.com
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