Category: articles

Patrick Ducharme

Reasonable expectation of privacy has emerged as the cornerstone test of the search and seizure process. Police activity will not be viewed as conduct requiring constitutional scrutiny under section 8 of the Charter unless a reasonable expectation of privacy has been violated. Based on the law of trespass our courts have stated that in each application the totality of circumstances must be considered to determine whether a reasonable expectation of privacy exists and whether or not there has been a breach of that reasonable expectation.
A fundamental issue in search cases is whether or not an individual has a reasonable expectation of privacy in relation to the property or premises searched. The Newfoundland Court of Appeal in Fry1 rather exhaustively canvassed the meaning of “reasonable expectation of privacy.” A number of cases have stressed that a reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances, which may necessitate a multifactor analysis. The Supreme Court of Canada’s decision in Edwards2 provided this non-exhaustive list of factors to be considered:
Continue reading “Reasonable Expectation of Privacy”

Patrick Ducharme

Defence counsel may wish to cross-examine the affiant on the affidavit used to support an application either for wiretaps or search warrants ( the Information to Obtain or “the ITO”). The ability to cross-examine on this affidavit is not as of right, but instead must be ordered by the court. The Supreme Court of Canada in Garofoli1 established the parameters as to when such cross-examinations will be permitted. The test is the same whether it is in relation to a search warrant or a wiretap.
Continue reading “Leave to Cross-Examine the Affiant of the ITO”

Patrick Ducharme

New technology presents new challenges for identifying and protecting one’s reasonable expectation of privacy. Fish J. writing the majority decision for the Supreme Court of Canada in Morelli1 wrote:

… It is difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.
Continue reading “Computers, Smartphones & Computer-Like Devices”

Patrick J Ducharme

In Gomboc the police believed that the residents of a private home might be producing marijuana. They obtained the consent of their utility company without the use of a warrant to install a digital recording ammeter (DRA) on the electrical power sources of the home. The device measures the electric power flowing into the residence. Based on the readings they were able to obtain a warrant to search the house, and in the house, they seized significant quantities of marijuana.
Continue reading “Technology and the Future”

Patrick Ducharme

The Code provides a complete scheme respecting the interception of private communications.1 An application for an authorization to intercept private communications must be signed by the Attorney General, the Solicitor General of Canada or by a designated agent. The application must be supported by a peace officer’s affidavit providing the grounds for requesting the authorization. Just as in the case of an ITO used to obtain a search warrant, the application for wiretap authorization, requires grounds provided under oath in a full and frank manner that supports the issuance of the authorization. The grounds usually include a complete summary of the investigation and attempt to demonstrate that there is no other reasonable means of investigation of the accused without the use of this special technique. The court will grant the authorization if the court determines that doing so is in the best interests of the administration of justice.
Continue reading “Wiretaps”

Patrick Ducharme

The Code contains a comprehensive scheme to allow for the issuance of a warrant to seize bodily substances for the purpose of DNA analysis. The forensic DNA warrant can be issued only for a “designated offence”. A DNA warrant authorizes taking small blood samples, usually with the prick of a finger, plucking hair samples or taking buccal swabs. Only a Judge can issue these warrants. The application is made ex parte to either a Judge of the Provincial Court or to a Judge of Superior Court. The issuing Justice must be satisfied that a Designated Offence has been committed, that a bodily substance connected with the offence has been found, that the person in question was a party to the offence, that there are reasonable grounds to believe that the evidence will be obtained as a result of the seizure of DNA, and, that the issuance of the warrant is in the best interest of the administration of justice.
Continue reading “DNA Warrants”

Patrick J Ducharme

Part XX.2 of the Code sets out the special powers for obtaining special warrants and the making of restraint orders. The legislation creates offences for possession or laundering of the proceeds of a designated offence. Designated offences include all Federal indictable offences. The Code contains a very broad definition of proceeds of crime, including “any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly” as a result of the commission of the designated offence. This Part of the Code has its own search warrant procedures3 that authorize searches for property that is thought to be obtained by the proceeds of crime. There is also a provision that permits the Attorney General to apply for a restraint order that would prohibit a person from disposing of property reasonably believed to be the proceeds of crime. This section also permits the freezing of bank accounts. Also, applications can be made to the court for a management order. Information may be ordered disclosed to the authorities. For example, income tax information may be ordered disclosed. A person with interest in the property may apply to have it returned, or, to at least examine it.

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

“Police agents” often also assist the police. But a bright line distinction must be made between “agents” and “confidential informers”. Only confidential informers are protected by informer privilege. Stated another way, if a court determines that an informer was actually acting in the capacity of a police agent, not only will the identity of the agent be disclosed, it must be disclosed. Sometimes distinguishing between a confidential informant and an agent is challenging. The Court of Appeal for Ontario recently, however, provided some helpful guidance. The court described the difference between the two roles as:
Continue reading “Distinction between Agents and Confidential Informants”

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)”