WDW101Y1 Lecture Notes - Indictable Offence, Exigent Circumstance, Reasonable Suspicion

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5 Feb 2013
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SEIZURE
ARREST
- 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
DETENTION
- 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
reasonable doubt
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 DNA
o Bodily substances (e.g. breathalyser)
o Personal information (can be from electronic database)
o Private communicationsemail, 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)
FACTS:
- Mens public washroom at the Silvercreek park in Guelph
- Lebeau was in hte 3rd 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 pmthere 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?
RULING:
- 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
privacy
- That is not an expectation of privacy
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