- Arrest powers are in the C.C.
- Polic can get warrant if they have RPG
- Police can arrest w/t a warrant if they meet the criteria in s. 494 or s. 495 of the Code
- Powers of private citizens to arrest (without a warrant) are more limited
- Taken into custody of police until release on some form of bail, or you’re charged
- Something short of arrest, brief in duration, can be fore investigative purpose but it is NOT an arrest, lower threshold that police have to meet for detention to be
valid which is...
- Police need “articulable cause”, aka. Reasonable suspicion that something occurred for detention to be valid
- Can be in the production physical or psychological restraint EITHER will trigger rights under s. 10 of the Charter
- Can be physical, psychological (focus on what reasonable person would feel in response to police conduct), either actual legal requirement to comply to request to
police (e.g. breathalzyer) or a reasonable person in similar circumstances would reasonably believe they did had to comply with police
- Articuable cause/reasonable suspcision, RPG, prima facie (some evidence on some elements), balance of probablitites (more likely than not), prove beyond a
SEARCH AND SEIZURE
- Section 8 –“Everyone has the right to be free from unreasonable search and seizure”, only protected against UNREASONABLE searches
What constitute a search or seizure?
- Historically, searches involved only physical property, over time, focus shifted to protecting privacy
- Now it is about privacy interest, do you have privacy entitled to what the police wants to see from you
R. v. Wills (1992, Ont. CA) –breath sample
“the section stands as a bulwark against unreasonable state-sponsored invasions of an individual’s 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” ..not just about tangible
items but about privacy, not just physical intrusions, section 8 goes beyond that to protect any sense of privacy you may have and information about yourself, it protects
personal privacy in any way it manifests where you expectation of privacy is reasonable
- Must have REASOANBLE EXPECTATION OF PRIVACY over the PLACE SERARCHED or ITEMS SEIZED for s.8 to apply at all, if there is no reasonable expectation there is
not charter argument
- Have to think about what is taken beyond tangible property
- Section 8 protects the seizure of
o Bodily substances (e.g. breathalyser)
o Personal information (can be from electronic database)
o Private communications—email, phone calls, text message, pin message, MSN chat
o Physical items
BUT NO EXPECTATION OF PRIVACY = NO s. 8 PROTECTION (In theory police can intercept these things, but it IS seizure)
REASONABLE EXPETATION OF PRIVACY –WHERE AND WHEN?
R. v. Leveau and Lofthouse (1988, OCA)
- Men’s public washroom at the Silvercreek park in Guelph
- Lebeau was in hte 3 stall with the door closed engaged in sexual activities with another male (between 6.00 and 6.14 pm)—other used washroom during that time
- Lofthouse and another male engaged in sexual activities between 4:02 pm and 4:11 pm—there were 2 other people standing guard at the front door
- Charged and convicted under s. 157
“everyone who commits an act of gross indecency with another person is guilty of an indictable offence 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 activitie
- Video recording = seizure of information (images), police had cameras all over the place
ISSUE: DOES s. 8 APPLY?
1) Did they have reasonable expectation of privacy?
2) Did it matter what they were doing?
3) Is ia reasonable expectation of privacy different from an expectation of avoiding detention?
- No reasonable expectation of privacy
- Police surveillance established that is had become the meeting place for men for the practice of homosexual acts
- Conduct probably offended s. 157 of the C.C.
- Look outs and precautions suggest they had an expectation that they would escape detection by the police or interference by the public; difference from getting
caught than having reasonable expectation of privacy...the more things you have in place to prevent getting caught shows that it is less likely to have expectation of
- That is not an expectation of privacy - Not a case of persons resorting to the privacy of a closed cubicle in a public washroom for its expected use ; may be intended for one purpose and you use it for that
purpose you have an expected privacy, but if not than you don’t have an expectation of privacy
R. v. Wong, 1990 SCC
Illegal gambling in a hotel room—police established video surveillance of the room without a warrant—charged Wong with keeping a gaming house—Wong argued that the
videotaped evidence was obtained “in a manner that infringed s. 8 of the charter” and should be excluded under s. 24 (2). Once again the police did not have a warrant prior to
setting up the recordings.
Crown: no expectation of privacy if you don’t use it for its intended purpose, don’t need warrant, allowed to intercept and record
S.C.C.—occupants of a hotel room have a reasonable expectation of privacy; illegal nature of conduct does not defeat reasonable expectation of privacy; its not the same as
your house, don’t have exclusive access, you know to a certain extent there are parts of hotels that are public, the room itself you have expectation of privacy. The fact that
they were using it for an illegal purpose did not change their expectation of privacy, post Wong, Lofthouse and Lebeau is not the law anymore,
WHAT IS THE DIFFERENCE BETWEEN A PUBLIC WASHROOM AND HOTEL ROOM?
- Not the same level of privacy
- Need to look at the expectation of privacy in what location (e.g. public washroom vs. hotel room) , depends how private it is and who has and controls access
- If you don’t have an expectation of privacy then it ISN’T unreasonable search or seizure, the police is ALLOWED to get the type of information
- We don’t have expectation of privacy for garbage if someone can access it without trespassing
1) With a valid search warrant
2) If conditions to obtain a search warrant exist but impracticable to get a warrant because of exigent circumstances;
3) Items seized is in “plain view” (common law power); not anywhere in criminal code, if police has power to do an authorized search, and they walk in and see the
evidence in plain view the police are allowed to take it, even though what has been seen isn’t what they are catching even if not covered by a warrant
4) Search incident to arrest or investigative detention (common law power) ; once you are arrested/detained the police have common power to search you and
surrounding areas without a warrant
5) Consent (s. 8 not engaged) ; if you consent to the police to the police you or somewhere you are, it is a waiver of your expectation of privacy, it technically isn’t a
- S. 487(1) a justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptable or place...
(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence...
- RPG to believe offence has been committed, have to convince justice there are RPG evidence of that offence will be found in that place you want to search
R. v. Gillis (1982, Quebec CA)
- fraud case—fake promissory notes
- Reasonable grounds in the warrant = “the statement made by the victim, an examination of the documents and a police investigation”
- Items to be searched for included “bank notes, sfatey deposit keys, bonds, RRSP, or RHOSP, term deposists. Treasury bonds, bank drafts and all documents from the