Patrick J Ducharme

Patrick J Ducharme

Continued from part 1.

In July 2014 the Supreme Court of Canada delivered judgment in R. v. Taylor2. The accused was charged with three counts of impaired driving causing bodily harm. At the scene of the accident the accused was asked if he wanted to call a lawyer. The accused responded that he wanted to speak to both his father and to his lawyer. The Court of Appeal for Alberta had reversed the trial Judge’s convictions on appeal based upon the trial Judge’s erroneous assumption that an accused awaiting or receiving medical treatment could not reasonably be provided with private access to a telephone to implement his rights to counsel.
Continue reading “Tracking Devices (Part 2)”

Patrick Ducharme

A warrant may be issued authorizing the installation of a tracking device.1 The tracking device may be placed in or on anything, including a thing carried, used or worn by any person. The warrant is issued where the Justice is satisfied that information that is relevant to an offence under investigation can be obtained through the use of the tracking device.
Continue reading “Tracking Devices”

Patrick Ducharme

A Judge or Justice may order a person to produce documents or copies of them certified by affidavit to be true copies. A production order must satisfy the same requirements as a search warrant. Production orders are relatively new to the criminal law. The order is to be in Form 5.005. The form demonstrates that the order may require a person other than a person under investigation to produce a copy of a document in their possession or to prepare and produce a document containing data in their possession that will afford evidence respecting the commission of an offence. A person who is under investigation for “the offence” may not be made the subject of the production order.
Continue reading “Production Orders”

Patrick J Ducharme

Continued from part 1.

On further appeal to the Supreme Court of Canada, our highest court concluded that to be reasonable and therefore consistent with section 8 of the Charter a search must be authorized by law, the authorizing law must be reasonable, and, the search must be conducted reasonably. The court acknowledged that in some cases the privacy interests of an accused will be so high as to be almost inviolable. In those cases the common law power of search incident to arrest must yield. A search will be allowed only where the accused consents, or a warrant is obtained or exigent circumstances can be established. The court also opined that there may be instances where the accused’s privacy interests are significant, but not so significant as to preclude the power of police to search “incident to arrest.”
Continue reading “Penile Swabs (Part 2)”

Patrick Ducharme

The power of the police to take and the method by which they seize penile swabs of an accused was before the Alberta Court of Appeal prior to making its way to the Supreme Court of Canada. In R. v. Saeed1 the Court of Appeal for Alberta decided an appeal by an accused from his conviction for sexual assault causing bodily harm and sexual interference based largely upon the trial Judge’s refusal to exclude DNA evidence obtained from a penal swab of the accused. The trial Judge found that the swab was an illegal, warrantless search that seriously impacted the accused’s privacy rights. She found, however, that there was no bad faith on the part of the police and that society had a significant interest in adjudicating the matter on the merits. Therefore, she found the evidence admissible despite the warrantless search and seizure.
Continue reading “Penile Swabs”

Patrick Ducharme

Continued from part 1.

The law in Canada is that warrantless searches are prima facie unreasonable under section 8 of the Charter (Hunter). Where a search is carried out without prior authorization in the form of a warrant, the burden is on the party seeking to justify the warrantless search to prove that it was not unreasonable. Searches of the person incident to arrest are an established exception to the general rule that warrantless searches are prima facie unreasonable.
Continue reading “Strip Searches (Part 2)”

Patrick Ducharme

In R. v. Golden the Supreme Court of Canada determined that strip searches are inherently humiliating and degrading for detainees regardless of the manner in which they are carried out. Consequently, they cannot be carried out simply as a matter of routine policy. Because they are conducted pursuant to an arrest and therefore warrantless, the onus is on the Crown to prove the reasonableness of the search.
Continue reading “Strip Searches”

Patrick J Ducharme

Continued from Part 1.

487.01: A provincial court Judge, a Judge of a superior court of criminal jurisdiction or a Judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if

(a) the Judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing; Continue reading “General Warrants 487.01 (Part 2)”

Patrick Ducharme

Either a Provincial Court Judge or a Judge of a Superior Court may issue a warrant in writing authorizing a peace officer to use any device or investigative technique or procedure or do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or person’s property, if the Judge is satisfied by information on oath in writing that there are reasonable grounds to believe that in an offence against the Code or any other Act of Parliament has been or will be committed, and, that information concerning the events will be obtained through the use of the technique, procedure or device.
Continue reading “General Warrants 487.01”

Patrick Ducharme

Continued from part 1

The owner is entitled to make application for the return of the property.1 Section 490 of the Code does not, however, provides specifically for the return of money seized. The proper procedure for obtaining an order for return of monies is an application for replevin. The onus is upon the Crown to establish that the monies, previously in the possession of the applicant, then seized by the police, were tainted by criminality.2 Section 490, while purporting to provide a complete scheme for dealing with property seized in connection with crime, does not deal with seizures of money that fail to comply with the requirement of reasonable grounds. Consequently, a provincial court Judge has no power to order money returned for an unlawful seizure.3

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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