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Dena Demos

Midterm test next class - Fact pattern plus short answer - Close book - Allowed one 8 ½ x 11’ “cheat sheet” RECAP 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) Item seized is in “plain view” (common law power) 4) Search incident to arrest (common law power) 5) Consent search TO GET A WARRANT: 1) Need RPG to believe a) An offence has been committed b) Evidence of the offence will be found in the place to be searched 2) Must describe items to be searched for seizure in detail SEARCH AND SEIZURE CONSTITUTIONAL CONSIDERATIONS - Apply to ALL searches - Doesn’t matter if authorized by statue or common law - ANY search must comply with minimum constitutional requirement - If a particular search OR law authorizing the search does not comply with the constitutional requirements, it will be unreasonable and a violations of s. 8 of the charter R. v. Collins (1987, SCC) Facts: Police had a suspected drug trafficker under surveillance in a bar in Gibson BC, police tackled Gibson in a bar and put her in a throat hold (to stop her from swalling drugs); police used “considerable” force in effecting the search; found a balloon of heroin in her hand Narcotics Control Act (replaced by the Controlled Drugs and Substances Act) 10 (1) a peace officer may, at any time, (a) Without a warrant enter and search any place other than a dwelling-house and under the authority of a writ ofs assistance or a warrant issued under this section, enter and search any dwelling-house in which he reasonably believes there is a narcotic... (b) Search any person found in such place’ and (c) Seize and take away any narcotic found in such place, any thing in such place in which he reasonably believes narcotic is contained or concealed The officers were suspicious BUT - No evidence the police had RPG that Collins had drugs, they had suspicion but not enough that would amount to RPG - Did not make any observations that would give rise to RPG - No observed transaction ISSUE: Is this an unreasonable search under s. 8 - If the search is warrantless, it is presumptively unreasonable (even if permitted under legislation) TEST: a search (any searches) will be reasonable if 1) Authorized by law (statute or common law that have been met, the particular search in the case has been authorized by statute or common law); AND 2) The law itself is reasonable ; AND 3) The search is carried out in a reasonable manner - Over time certain laws will be reasonable, you don’t’ have litigate it in each and every case, usually mean did you meet the test of the common law/statute RULING: 1) There was no evidence or reasonableness of belief to know whether it was authorized by law (NCA)[part 1 of the test]...the police did not meet the test for the NCA, failed part 1 of the test because they don’t have evidence that met the test of NCA and if you don’t meet the test it isn’t authorized by law 2) No evidence that the manner of the search was reasonable [part 3 of the test failed], no evidence called that justified why the police had to tackle and put her in a throat hold, might be reasonable in some circumstances, but they had no evidence...as far as the average person was considered she was minding her own business and got attacked by police THEREFORE: the search was unreasonable and the drugs were obtained in violation of s. 8 of the Charter SCC: set aside conviction and set new trial, in new trial the police can call evidence that it was reasonable and the manner was justified Ultimately she was convicted a second time, the police gave more descriptive testimonies What happens to the heroin: would we admit the evidence anyway? s. 24(2): Where...a court concludes that evidence obtained in a manner that infringed or denied any rights or freedoms...the evidence shall be excluded if it is established that, having regard to all the circumstances,, the admission of in the proceedings would bring the administration of justice into disrepute Q1) was evidence gathered in a manner that was violation charter Q2) would admitting the eivdnece but admin of justice into disrepute - Focus on analysis is on effect of evidence - Not intended as remedy for police misconduct (focus on effect of admitting evidence on public perception of admin. Justice) - Designed to prevent bringing the administration of justice into further disrepute by admittin gevifdenc eobtained in violation of the charter - Would eth admission of evidence bring the admin of justice into disrepute in the eyes of a reasonable person, dispassionate and fully apprised of the criumstances of the case - By the point in the time we conduct this analysis the charter breach has already happened, it is prevent further disrepute...the whole situation will be worst if you admit this evidence TEST FOR EXCLUSION OF EVIDENCE a) Trial fairness (i) What kind of evidence was obtained? (real v. Conscriptive evidence) real evidence = tangible things, something that existed before charter right was violated (drugs, guns, etc.,); conscriptive evidence = evidence that did not exist before charter, victim participates in creating the evidence after you charter violation, requires participation of accused (e.g. testimony after charter violation, or a breath sample, drawing of the crime scene during interrogation, etc.)....if is conscriptive evidence it would undermine fairness of the trial and it would be dismissed (ii) What charter right was infringed? b) Seriousness of the charter violation; the more serious it is, the more likely evidence will be exclude (i) Was charter violation serious or of a merely technical nature (e.g. didn’t tell you about rights upon arrest) (ii) Could evidence have been otherwise obtained; was there a way they could have gotten evidence legitimately (iii) Deliberate/wilful/flagrant vs. inadvertent/good faith?; were they intentional breaching someone’s charter right, or were they just not clear on what the law was and thought they had power for something they actually did not (iv) Circumstances of urgency or necessity? (v) Other investigatory techniques available; were the other things that could have further their investigation before the charter breach c) Effect of exclusion; what would reasonable person think if they excluded evidence (i) is the offence serious?; community is more outraged if evidence excluded in really serious cases vs. not serious cases (ii) Is the evidence essential to Crown’s case? -Collins is important, tells us serach has to be authorized by law, manner is important...creates the test under s. 24(2) Hunter v. Southam (1984, SCC) FACTS: investigation under the Combines Investigation Act of teh Edmonton Jounral; Director of Investigations authoriezed officers to serach the premises of Edmonton Journal (in Edmonton and elsewhere in Canada),and “examine anything thereon and copy or takea away for copying” it was about the price fixing Search under “authorized” s. 10 of teh CIA s. 10(1)—in any inquiry under this Act the Director..or any respresentative...may enter any premises on which te Director believes there may be evidence relvant to the matters being inquired into s.10(3)—before excercising the power conferred by subsection (1), the director...representative shall produce a certificate from a member of the [Rrestrictive Trade Practices] Commission...authorizing the excercise of such power - got permission to serach Edmonton Journal and anywhere in Canada that may be evidence...huge search power ISSUE: does s.10 of the Combines Investigation Act violate s. 8 of the Charter by allowing for unreasaonble searches and seizures? No doubt they conducted serach as authorized by the legislation ONLY ISSUE: reasonableness of the law [i.e. no issue it was (1) authorized by law and (3) was carried out in a reasonable manner] Defining “unreasonableness” under the Charter? - Constitution is a purposive document; purpose behind rights and to be interpreted consistent with the purpose and can grow and evolve over time, not a static doc - Designed to create and protect rights - Rights must be broadly construed - Must determine the purpose of s. 8 of the charter PURPOSE OF s. 8 - Historically limited to protecting private property - Now it is recognized that we have interest in being left alone by gov’t - Entitled to reasonable expectation of privacy; more evolved to be left alone by gov’t and privacy - Must be balanced against gov’ts interest in intruding on an individual’s privacy to advance its goals, including law enforcement ISSUES: 1) When should this balance be made? OPTIONS: prior authorization(someone decides ahead of time, in circumstance of particular case that the state interest outweighs individual rights, justifies police action) vs. subsequent validation (after the fact have judge decide if police action was okay) The purpose of s. 8 is to protect individuals from unjustified state intrusions upon their privacy, that requires a means of preventing unjustified searches beyond they happen, no siply of determining, after the fact, whether they ought to have occurred in the first place THEREFORE—need prior authoritazation (something like a warrant) o Focus state to justify that the invasion of privacy (state inerest) should trump individual interest o Allows conflicting interests of the state and the individual to be assessed before the infringedment occurs o Privacy rights will be breached only where the appropriate standard has been et, and the state interests are clearly superior o Warrantless search is presumed to be unreasonable (any search/search power[law] that allows this will be considered unreasonable) 2) Who shou
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