Category: articles

Patrick Ducharme

For as long as crime has been investigated, informers have played a significant role in many criminal investigations. In fact, in R. v. Basi1 the Supreme Court of Canada characterized the role of the informer as an “indispensable tool in the detection, prevention and prosecution of crime”.2The Court of Appeal for Ontario in R. v. XY3 referred to informer privilege in the following terms:
Informer privilege provides an all but absolute bar against revealing any information that might tend to identify a confidential informer. Courts have no discretion once the existence of the privilege is established. A Judge is under a duty to protect the informer’s identity. Informer privilege accords no place for judicial balancing of benefits from the privilege against any countervailing considerations.4
Informer privilege is a class privilege. This means informer protection covers everyone who falls within that class. The Supreme Court of Canada in Bisaillon v. Keable5 described the privilege as follows:
Continue reading “Informer Privilege”

Patrick J Ducharme

continued from Part 1.

In Grant the majority of the court noted that while there is no absolute exclusionary rule against statements obtained following a Charter violation, the courts have tended to exclude such statements. But the court in Grant was establishing new rules related to the exclusion of evidence. The new framework the court said would “support a presumptive general, although not automatic, exclusion of statements obtained in breach of the Charter”
Continue reading “The Court Must Decide (Part 2)”

Patrick Ducharme

Continued from a series on Searches and Confessions…

The Court Must Decide

Basic to all of this is the concept that before a Crown may offer evidence of a statement made by the accused to a person in authority, the Crown must have the court rule on the admissibility of that statement in accordance with the common law confessions rule. If there is any issue about the status of the recipient of the statement being “a person in authority” the burden falls to the accused to at least establish that the recipient was, in fact, a person in authority. Continue reading “The Court Must Decide”

Patrick Ducharme

The issue of statements/confessions given to persons in authority during detention or arrest our courts will now look to the principles outlined in Oickle9 and Singh10 and Sinclair11 to determine whether there has been a Charter breach. In Oickle the Supreme Court of Canada examined in detail the common-law confessions rule. In so doing the court drew a sharp distinction between applications that allege a Charter breach and those that rely upon the common law rule. The court also concluded that the Charter does not subsume the common-law rule. Each is distinct for several reasons.
Continue reading “Statements and Confessions”

Patrick J Ducharme

Continued from a series of articles on Border Searches.

The Mann case must be read in conjunction with these cases. A detention must be lawful prior to any search incidental to arrest or detention. Extraordinary searches, such as strip searches, require that the prosecution justify the extraordinarily intrusive nature of a strip search by the circumstances.7 Strip searches are intrusive by their very nature. They will be allowed only when certain pre-conditions are met and the search is conducted reasonably.

Continue reading “Strip Searches (at border)”

Patrick Ducharme

In these three cases the Supreme Court of Canada clarified, and arguably reduced significantly, the protections afforded people detained while being interrogated. Nevertheless these cases outline the obligations imposed upon the police in such detentions and also attempt to define the limits upon police activity when encounters between the police and individuals rise to the level of at least detention, if not arrest.

Continue reading “Oickle, Singh and Sinclair: The Confessions Rule”

Patrick Ducharme

FLIR imaging is not the equivalent of an entry to premises that is under surveillance. Rather, it is more accurately characterized as an external surveillance of a home or place to obtain information that may be capable of supporting an inference about what actively is going on inside. Consequently, in its present form, FLIR imaging cannot permit any inferences about the precise activity occurring inside simply by measuring the heat that emanates from a home or other place. Context is important here. Everything shown in an FLIR photograph exists on the external surfaces of the building. Thus, the technology does not infringe or intrude upon a person’s reasonable expectation of privacy.

Continue reading “J. FLIR Technology”

Patrick Ducharme

There are three categories of border searches:

1) routine questioning that often involves a search of baggage and a pat-down frisk or the use of an electronic wand;
2) strip searches conducted in private after a secondary examination and with the approval of a customs officer in authority;
3) body cavity searches where customs officers use medical doctors or x-rays or other highly intrusive means to conduct the search.
Each of these categories of search is separate and discreet. They are not points on a continuum. In any event, a traveler’s reasonable expectation of privacy is reduced considerably when crossing international borders.

Continue reading “Border Searches”

Patrick J Ducharme

There is no requirement for a search warrant prior to a courthouse search carried out under an enabling provincial statute. There are several factors that lead to the conclusion that a search warrant is not required. These factors include the fact that courthouse searches are not carried out for the purpose of a criminal investigation, and, there is a diminished expectation of privacy for persons attending courthouses. The searches are carried out for the protection of all persons including those persons that are searched.1

The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.

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Patrick Ducharme

In R. v Jarvis1 and R. v. Ling2 the Supreme Court of Canada held that where the predominant purpose of the inquiry is the determination of a penal liability, officials must relinquish their authority to use inspection and requirement powers given to them under regulatory schemes such as the Income Tax Act. The issue becomes whether the predominant purpose of the regulatory investigator at the time the evidence is gathered is to attempt to determine penal liability. If regulatory investigators are pursuing a purpose that is predominantly penal in nature, then the Charter principles under sections 7 and 8 are available to challenge the search or seizure. If, on the other hand, regulators gather information while predominantly pursuing a regulatory objective, there is no general rule precluding passing information so discovered to criminal investigators. The questions to be answered are as follows:
Continue reading “Regulatory Searches”