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LAW399A: Advanced Criminal LawFall 2006 CAN

Instructors: Kensi Gounden & Greg Delbigio

POSSESSION.................................................................................................................................2COMMON THEMES IN POSSESSION CASES...................................................................................2

Actual Possession (s.4(3)(a)).........................................................................................2Constructive Possession (s.4(3)(a)(ii)).........................................................................3

R. v. Amado [1996] BCSC............................................................................................3R. v. Brienza [2003] BCCA..........................................................................................3R. v. Fisher [2005] BCCA.............................................................................................3Fact Pattern..................................................................................................................3

Joint Possession (s.4(3)(b))............................................................................................4R. v. Nguyen [2003] BCCA..........................................................................................4

CONSPIRACY.........................................................................................................4OVERVIEW OF CONSPIRACY........................................................................................................4

Conspiracy in the Criminal Code....................................................................................4s.465: Criminal Code provisions re: Conspiracy.....................................................4Penn's Case (1670)......................................................................................................5

Intention............................................................................................................................5R. v. O'Brien [1954] SCC.............................................................................................5Yip Chiu-Cheung v. The Queen [1994] JCPC............................................................5

Aiding & Abetting / Attempt to Conspire.....................................................................5R. v. Taylor [1984] BCSC.............................................................................................5R. v. Dungey [1979] OntCA.........................................................................................6

Impossibility......................................................................................................................6USA and Minister of Justice v. Dynar (1997) SCC...................................................6

Hearsay and the Co-Conspirator's Exception: for Statements by Persons Engaged w/ Others in a Common Purpose or Design.................................................6

R. v. Mapara [2005] SCC.............................................................................................7R. v. Carter [1982] SCC...............................................................................................7

Co-Conspirator Acquitted...............................................................................................7R. v. Guimond [1979] SCC...........................................................................................7Agreement.....................................................................................................................8R. v. MacDonald (1963) BCCA....................................................................................8R. v. Rowbotham [1988] OntCA.................................................................................8R. v. Carvery (1991) NSSC-Appeal Division.............................................................8R. v. Randall and Weir (NSSC - Appeal)...................................................................8

Multiple Conspiracies......................................................................................................8R. v. Cotroni and Papalia [1979] SCC.......................................................................8

SEARCH AND SEIZURE............................................................................................9THE COST OF THE CHARTER.......................................................................................................9PRE-CHARTER SEARCH & SEIZURE CASES...................................................................................9

Eccles v. Bourque [1975] SCC........................................................................................9R. v. Colet [1981] SCC.....................................................................................................9

POST-CHARTER SEARCH & SEIZURE CASES...............................................................................10s.8 protects a Reasonable Expectation of Privacy / Prior Judicial Authorization10

Hunter v. Southam [1984] SCC................................................................................10Warrantless Searches are Prima Facie Unreasonable / s.24(2) factors...............10

R. v. Collins [1987] SCC.............................................................................................10Evaluating Tips...............................................................................................................10

R. v. Debot [1989] SCC..............................................................................................10Reasonable Expectation of Privacy in Perimeter of Dwelling-House / Bad Warrants..........................................................................................................................11

R. v. Kokesh [1990] SCC...........................................................................................11R. v. Grant [1993] SCC...................................................................................................11Definition of a Search....................................................................................................11

LAW399a: Advanced Criminal Law Last Updated: 18/05/2023

R. v. Evans [1996] SCC..............................................................................................11Reasonable Expectation of Privacy is based on the Totality of Circumstances. .11

R. v. Belnavis [1997] SCC.........................................................................................11Searches Incidental to Arrest......................................................................................12

R. v. Caslake [1998] SCC...........................................................................................12Standards for Searches in Other Situations..............................................................12

R. v. Monney [1999] SCC..........................................................................................12R. v. M.R.M. [1998] SCC............................................................................................13

Searches Incident to Detention...................................................................................13Dedman v. The Queen [1985] SCC..........................................................................13R. v. Mann [2004] SCC...............................................................................................13

Strip Searches................................................................................................................14R. v. B.W.B. [2002] BCCA..........................................................................................14

Section 24(2): Exclusion of Evidence..........................................................................14Temporal Connection Required to invoke s.24(2)................................................14

R. v. Goldhart [1996] SCC.....................................................................................14Conscriptive Evidence vs Non-Conscriptive Evidence / Derivative Evidence / Discoverability............................................................................................................14

R. v. Stillman [1997] SCC.....................................................................................14Arrest in Dwelling House..............................................................................................14

Warrant required to arrest in dwelling-house......................................................15R. v. Feeney [1997] SCC.......................................................................................15

Feeney warrant extends to houses of 3rd parties - not just suspect...............15R. v. Adams (2001) OntCA....................................................................................15

"Hot Pursuit" Exception............................................................................................15R. v. Haglof (2000) BCCA......................................................................................15

Forced entry okay to ascertain location, life & safety of disconnected 911 caller............................................................................................................................15

R. v. Godoy (1998) SCC.........................................................................................15Other Developments......................................................................................................15

Reasonable Expectation of Privacy if Access over Control.................................15R. v. Buhay [2003] SCC.........................................................................................15

Credibly-Based Probability.......................................................................................16R. v. Billings [2004] BCSC.....................................................................................16

FLIR: Forward Looking Infrared Imaging...............................................................16R. v. Tessling (2004) SCC.....................................................................................16

Wiretaps and Other Electronic Surveillance..............................................................17Warrants Required for Wiretap...............................................................................17

s.178.13(1) (CC provision for wiretap warrants):.............................................17R. v. Duarte (1990) SCC........................................................................................17R. v. Araujo (2000) SCC.........................................................................................17

Procedure for Challenging Validity of Warrant....................................................17R. v. Garofoli (1990) SCC......................................................................................18R. v. Pires, R. v. Lising (2005) SCC.....................................................................18

PossessionStart with the substantive offence, then determine which category of possession to figure out what the Crown must prove BARD: Actual Possession > Constructive Possession > Joint Possession

Direct Evidence - evidence which proves a fact directly without a further inference Circumstantial Evidence - evidence which requires an inference in order to prove a fact.

Inferences are less than certain. Deductions are certain, inferences are not. But guilt can be based on an inference so long as it is the only inference that can be drawn (Hodges Case). To determine whether an inference is the only reasonable one, look at the facts.

Common Themes in Possession Cases Behaviour of suspect: Did the suspect cooperate with police? Access to the item: How many entryways? Were the doors locked? Did you talk to anyone else

who had a key to the carport? When did the item appear? Who had access to the item? Drug Use: Did the suspect use drugs? What is their history of drug use?


Actual Possession (s.4(3)(a))A person has anything in his possession when he has it in his personal possession.

Constructive Possession (s.4(3)(a)(ii))A person has anything in his possession when he knowingly has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person

R. v. Amado [1996] BCSCFacts: 2 miscreants driving down Robson Street - pulled over for "suspicious" behaviour. Police see nylon bag stowed behind passenger seat - ask passenger to open - passenger reaches behind & opens bag - police see some black material, zap straps & butt of gun. Amado & Soulie charged w/ 2 counts of gun possession & 2 counts of being car occupant where they knew there was a restricted weapon.

Crown: 2 of each item except gloves / co-accused live together Defense: guns not in plain view / car rented 3 weeks ago / guns behind passenger seat / passenger

was calm / no fingerprintsHolding: Not guilty. Crown couldn't prove constructive possession. No knowledge of contraband in bag. Ratio: Look at substantive offence, then figure out what sort of possession from CC, s.4(3):

1. Actual Possession: Manual Handling - When person holds item or it is found on their person.

2. Constructive Possession: Knowledge (based on direct evidence or inferences based on circumstantial evidence) and control (ability to grant access to an item or not)

3. Joint Possession - Knowledge and consent.

R. v. Brienza [2003] BCCAFacts: Pot & cocaine found in Brienza home. B & J (wife) charged w/ possession of pot & PPT cocaine. Only B convicted of cocaine charge. Roach clippings & baggies of pot found near master bedroom. Basement - black tote bag of pot, LaSenza shopping bag of pot (wife's brother's ID found in bag), motorcycle saddlebag of cocaine (found under stairs in basement by toys). Clean scales found in rec room.Crown: B was longshoreman who had a motorcycle jacket for motorcycle club. Defence: Someone else's ID found in LaSenza bag. Wife never saw B w/ saddlebag. Lots of people had access to house/basement with keys. Holding: Not guilty. Crown couldn't prove constructive possession of cocaine in saddlebag. No direct evidence that B had control over saddlebag, only that it was a motorcycle saddlebag and he had a connection to motorcycles. Knowledge of the bag is unimportant - it is the knowledge of the contraband which would be important. Ratio: Knowledge of contraband container is irrelevant - need to prove knowledge of the contraband inside.

R. v. Fisher [2005] BCCAFacts: Fisher charged w/ PPT cocaine. Cops observe sb banging on F's door, then driving away in stolen truck. Cops inquire at F's place. F has no ID or proof that he lives there. F allows cops in & goes into kitchen. Cops see F put scale covered with white powder into drawer next to bag of cocaine, see powder-covered measuring cup & calculator on counter, see dextrose in cupboard. $1383 cash found in F's pocket.Defence: F's girlfriend's roommate was cocaine dealer. F had nothing to do w/ dealing. F didn't have knowledge or control over cocaine. Girlfriend testifies that F didn't use cocaine & only came over a few times a week, but knew that roommate used cocaine, and that roommate was left alone in apt. Roommate testifies that he bought cocaine a few days ago & that it was for personal use & it wasn't F's cocaine & that F didn't use cocaine & roommate sells cocaine occasionally.Crown: F had knowledge & consent over cocaine as he hid scales in drawer with cocaine. Holding: Guilty. Crown proved constructive possession. Knowledge: F hid scales in drawer w/ cocaine / F was alone in apt / F had unexplained $1383 in pocket / F knew what scales were for. Court finds that TJ was not inconsistent in determining that Nilsson was the owner, but rejecting his testimony because he couldn't remember where he got the cocaine from. Consent: Cocaine was in common area, in unlocked drawer, F put scales in drawer w/ cocaine.


Ratio: Ownership not required to prove possession, so long as you can prove knowledge. Look at the evidence with common sense (distinguishes Brienza).

Fact PatternFacts: Police sit on old tip - observe "hand-to-hand exchange" at A's car. Drugs & money found in car backseat & on accused (driver). Police search house - find drugs & money in house under trapdoor, in basement, and under bedroom floor & mattress. Accused's ID found in house. All drugs are puck-shaped cocaine. A never seen in house.Holding: A convicted of cocaine on person - actual possession. A acquitted of cocaine in car & in house - no proof of constructive possession - no knowledge of cocaine in house or in car (backseat). Only cxn b/t A & house is his ID.

Joint Possession (s.4(3)(b))Where one of 2 or more persons with the knowledge & consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

R. v. Nguyen [2003] BCCAFacts: Car stopped after seen with hooker - black object (w/ cocaine & heroin) thrown from window - 3 cel phones seized - phones receive drug requests. Both charged with possession of cocaine & PPT heroin. Holding: Guilty. Crown proved joint possession. Inference of dial-a-dope operation from car, therefore both occupants had knowledge & consent over contraband. Doesn't matter who threw drugs out.Ratio: Defines joint possession.

Conspiracy

Overview of ConspiracyConspiracy law originated in 16th century when rich folk were afraid of losing power to poor masses. Law prevented people from getting together, forming a plan & acting on that plan. Get them before they get you.

In Canada, conspiracy can be done against the state and also with regards to any indictable offence and any summary offence. Takes into account state & individual interests in protecting society.

Why should I learn about conspiracy? Conspiracy touches on number of hot topics: 9/11, terrorism, Air India, organized crime, etc. In BC, Crown approves more conspiracy charges than any other type of charge.

Conspiracy in the Criminal Code1892 - Enacting of the Criminal Code

Prior to 1892, all offences were prosecuted through the common law. Section 9 - cancels out all common law offences

1955 - Amendment to the Criminal Code Made it possible to get a case on conspiracy relating to common law offence b/t 1955 - 1985.

1985 - Conspiracy created as an indictable offence

s.465: Criminal Code provisions re: Conspiracy465. (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:

(a) every one who conspires with any one to commit murder or to cause another person to be murdered, whether in Canada or not, is guilty of an indictable offence and liable to a maximum term of imprisonment for life;

(b) every one who conspires with any one to prosecute a person for an alleged offence, knowing that he did not commit that offence, is guilty of an indictable offence and liable

(i) to imprisonment for a term not exceeding ten years, if the alleged offence is one for which, on conviction, that person would be liable to be sentenced to imprisonment for life or for a term not exceeding fourteen years, or


(ii) to imprisonment for a term not exceeding five years, if the alleged offence is one for which, on conviction, that person would be liable to imprisonment for less than fourteen years;

(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable; and

(d) every one who conspires with any one to commit an offence punishable on summary conviction is guilty of an offence punishable on summary conviction.

(3) Every one who, while in Canada, conspires w/ any one to do anything referred to in s.1 in a place outside Canada that is an offence under the laws of that place shall be deemed to have conspired to do that thing in Canada.

Penn's Case (1670) Ratio: You cannot conspire alone. Factually, at least 2 people must be alleged to have been involved in the conspiracy. Note: A conspiracy can still exist even if only one person has been charged.Further Questions unanswered by Penn's Case (see Guimond):

What happens if one accused is found guilty, and the other acquitted? What happens if one accused pleads guilty early, and the other is acquitted at trial? What happens if both are convicted, and only one appeals? What happens if the appellant wins

their appeal?

IntentionR. v. O'Brien [1954] SCCFacts: O'Brien charged w/ unlawfully conspiring w/ Tulley to kidnap Pritchard. T not charged; testifies as Crown witness: agreed to kidnap w/ accused, didn't intend to go through w/ plan, reported scheme to police (created inference that T didn't intend to go through w/ plan). Holding: Not guilty. T didn't have intention, therefore he was not part of conspiracy. O'Brien couldn't conspire alone [both conspirators need intent], therefore not guilty of conspiracy. TJ incorrectly told jury that conspiracy was complete at time of agreement, even if T had no intention of carrying out agreement. Ratio: Conspiracy = Act (agreement to carry out unlawful plot) + Intention (intention to carry out plot). If only one conspirator has intention, then there is no conspiracy. Mere words purporting agreement w/o assenting mind to proposed act is insufficient for conspiracy.

Law punishes conspiracy so that unlawful object is not attained. If conspirators don't intend to carry out unlawful act, there will be no unlawful act, so state does not need to worry.

Acts in furtherance of conspiracy not required: Conspiracy is complete at time of agreement & intention. Anything done afterward leads to proof of agreement or intention.

O'Brien TulleyAct (unlawful plot) Yes YesIntention Yes No

Yip Chiu-Cheung v. The Queen [1994] JCPCFacts: Yip charged with conspiracy to traffic heroin w/ Hom (unknown person) & Needham (US undercover drug cop). N makes agreement with Y & H in Thailand that N will pick up heroin from Y in HK & traffic it to Australia for distribution. N advises police of plan & knows he will be allowed to carry heroin out of HK and into Oz - goal is to expose distribution ring. Y appeals: (1) Y agreed to a different conspiracy (travellers' cheques scam, not heroin) and (2) no conspiracy b/c N had no intent & would not be prosecuted.Holding: Guilty. N had intention to traffic heroin (though he didn't expect to be prosecuted). Found that Y intended to traffic heroin, not travellers' cheques. Ratio: All members of the conspiracy must intend to carry out the unlawful act. Irrelevant whether co-conspirators will be prosecuted for conspiracy. Undercover cop who intends to carry out unlawful act has requisite intent for conspiracy. Withdrawal is not a defence so long as intent is proven.Practice Note: Establish that undercover cop was concerned about his safety, always going back to police to check & that he only wanted to frustrate the accused, not catch him. Establish that cop didn't intend to go through w/ plan at all. Note that you don't need to question Needham on his decision to not fly to Hong Kong - because withdrawal is not a defence.


Yip NeedhamAct (unlawful plot) Yes YesIntention Yes Yes

Aiding & Abetting / Attempt to ConspireR. v. Taylor [1984] BCSCFacts: 5 people charged with conspiracy to rob Brinks' guard at Lougheed Woolco. Stewart applies for directed verdict on grounds that no evidence showing that he had intent to rob, only that he helped 4 co-accused practice robbery & offered advice on preparations. No evidence that S participated in actual robbery.Crown: 4 accused lived together; Stewart inferred to be close friend of several, if not all 4 accused. Argues that Stewart is part of conspiracy, or alternatively, that he aided & abetted the conspiracy.Holding: Directed verdict allowed (acquittal). Not enough evidence showing that Stewart intended to rob, therefore, did not have same unlawful objective. No evidence showing that Stewart aided/abetted conspiracy.Rule: All members of the conspiracy must have the same unlawful objective. Doubtful that one could aid/abet a conspiracy (see Dungey). Note: The charge against Stewart should've been incite to rob, hence the messiness.

Stewart OthersAct (unlawful plot to rob) Yes YesIntention No Yes

R. v. Dungey [1979] OntCAFacts: Dungey is solicitor charged w/ unlawfully conspiring w/ client to defraud Law Society. Not enough evidence to establish (1) intent to defraud, (2) attempt to defraud, or (3) conspiring to defraud. So Crown tries to convict Dungey of "attempting to conspire to defraud". Holding: Not guilty. No evidence that client intended to go along w/ Dungey's plan - therefore no common intention and no conspiracy. Ratio: There are 3 "incomplete offences" before the substantive offence is completed: incite > conspiracy > attempt. The following are all bad charges (non-existent offences):

attempt to conspire to commit a substantive offence. attempt to attempt attempt to conspire to attempt

To convict a sole conspirator of "attempting to conspire to defraud" when his alleged co-conspirator had not intent of carrying out the unlawful act would be convict the sole conspirator of guilty intention alone. Note: Court did not consider whether there could be an attempt to conspire where the conspiracy is the substantive offence. But there couldn’t be, because once you have 2 ppl agreeing to commit an unlawful act & can show intent to carry through with the plan, that's conspiracy. Nothing less!

Dungey ClientAct (unlawful plot to defraud) Yes YesIntention Yes [asks the client to do it] No

Impossibility USA and Minister of Justice v. Dynar (1997) SCCFacts: Dynar & Cohen convinced by undercover drug cops to launder money from Canada to US. Money is actually clean gov't money, unbeknownst to D&C. When D&C charged w/ conspiracy to launder money, they claim that there was no offence b/c the offence is only when laundering proceeds of crime.Issue: Can you be charged with conspiring to commit an impossible crime?Ratio: Legal or factual impossibilities no longer a defence. Only possible defence is an imaginary crime: where you conspire to do an "unlawful act" that isn't actually unlawful (i.e. reselling soap, when reselling soap is completely legal).

Hearsay and the Co-Conspirator's Exception: for Statements by Persons Engaged w/ Others in a Common Purpose or Design Rule against Hearsay: Out-of-court statements are inadmissible for their truth unless they meet an existing CL hearsay exception or have requisite Necessity & Reliability.


1) Out-of-court statement may not have been made under oath2) Declarant may not have been cross-examined contemporaneously3) Demeanour & manner of declarant when making statement cannot be examined

Example: Kensi says that "Romilly is a black guy". Statement is admissible only for fact that it was said by Kensi, but not for the truth that Romilly is black.

Principled Approach: Hearsay evidence is now admissible on a principled basis, the governing principles being the necessity and reliability of the evidence (Khan/Smith). Can't use corroboration for threshold.

Application of Co-conspirator's Exception: Applies to both civil & criminal conspiracies where accused has been charged w/ conspiracy or offences committed pursuant to a common design. Co-conspirator need not be charged in order to have statements admitted under this exception, nor do they even have to be proven members of conspiracy.

R. v. Mapara [2005] SCCBasis of Co-Conspirator's Exception: Admissions of a co-conspirator by words or conduct may be used as proof against the others on the basis that there is an implied authority given to all members of the conspiracy to act or speak in furtherance of the common purpose on behalf of the others

R. v. Carter [1982] SCCOut-of-court acts, statements & documents made by a co-conspirator are admissible against an accused [even if their trials are severed] if:

1) They are made in furtherance of the object of the conspiracy while the conspiracy was ongoing2) They meet threshold admissibility as determined by the trier of fact (Carter)

a. Establish that there is a conspiracy BARD on all of the evidenceb. Establish that accused is a member of that conspiracy on BOP, on direct evidence only

Jury Instruction (Carter): All of this evidence will be heard by the jury - the jury must then decide in their deliberations whether to use any of it. Trial judge must then instruct jury as follows:

1) Whether on all the evidence, they are satisfied BARD that the conspiracy charged in the indictment existed2) If they are not satisfied, then accused charged with participation in conspiracy must be acquitted3) If jury concludes that a conspiracy did exist, they must decide whether there is some evidence of

the accused's membership in the conspiracy directly admissible against him which raises the probability that he in fact was a member of the conspiracy

4) If jury so finds, they then become entitled to apply hearsay co-conspirators' exception and consider evidence of acts and declarations made by co-conspirators in furtherance of objects of conspiracy as evidence against accused on the issue of his guilt. This evidence, taken with the other evidence, may be sufficient to satisfy jury BARD that accused was a member of the conspiracy & that he is accordingly guilty.

Cautions 1) Distinguish b/t evidence (1) for the purpose of determining preliminary issue of membership in

conspiracy (directly admissible) and (2) for purpose of determining ultimate issue of guilt (incl. co-conspirator's statements)

2) Mere fact that jury has found sufficient evidence directly admissible against accused to find him a probable member in the conspiracy does not automatically result in a conviction

3) Jury can still acquit accused even if it initially determines accused's probable membership in the conspiracy which enable the application of the hearsay exception. May not be convinced BARD.

Crawford: Where co-accused are alleged to have acted jointly, they should be tried jointly - especially in conspiracy trials, as to sever the trials may lead to inconsistent verdicts.

Co-Conspirator AcquittedR. v. Guimond [1979] SCC


Facts: M & G tried together for conspiracy to kidnap. Both convicted, both appeal. M gets new trial & is acquitted. G doesn't get new trial and remains convicted. Ratio: Inconsistent verdicts in a conspiracy case may occur where there is an imbalance of evidence against each accused.

Admissions are only admissible against the maker, therefore an accused's confession cannot be used against his co-accused. Trials should be severed if prejudicial effect of accused's confession on co-accused.

No man is to be convicted save on proof of his guilt BARD by evidence admissible against him (Shannon/Guimond)

Shannon: A & B are tried together. A pleads guilty, B is acquitted at trial. That's okay.

So long as the unlawful object of the agreement remains the same, it does not matter who leaves or enters the conspiracy (and at what time) so long as there are always 2 or more people. If the unlawful object changes, then the conspiracy changes.

AgreementR. v. MacDonald (1963) BCCAFacts: M, P, C & H charged with conspiracy to traffic heroin. Police observe Hill stashing heroin in various public locations which are then picked up by other people. Crown theory is of hub-and-spoke conspiracy: M, P & C were hub which directed operation of alleged trafficking conspiracy and instructed the spokes to stash heroin (Hill) and pick up heroin (various unknown persons).Holding: Not guilty of conspiracy. Evidence was just as consistent w/ a number of limited conspiracies as with one overall conspiracy as charged in the indictment [hub-spoke theory]. Guilty of substantive offence of trafficking, though - the Crown could prove the smaller offences. Rule: Common Agreement does not necessarily require all conspirators to know each other, or to be in the same locale. But all conspirators must have the same common unlawful purpose as charged in the Information to be guilty of conspiracy.

R. v. Rowbotham [1988] OntCAFacts: Drug importing conspiracy - mere purchasers charged as part of conspiracy.Holding: Mere purchasers not guilty of conspiracy - no agreement to commit broader trafficking plot. Rule: Merely performing an act that furthers the conspiracy does not imply agreement with overall plot to commit unlawful offence. Open to jury to distinguish b/t mere purchaser & co-conspirator trafficker.

R. v. Carvery (1991) NSSC-Appeal DivisionFacts: Carvery arranged to sell drugs to Hyde via David; convicted of conspiracy to traffic (conspiring w/ David). Holding: Guilty of conspiracy. David was more than mere intermediary - he had control over Hyde. Carvery & David schemed together toward criminal object of sale of crack cocaine to Hyde. Evidence of agreement & intention. Ratio: An agreement made by an alleged co-conspirator to commit an unlawful purpose (when that co-conspirator has some control over the unlawful purpose) is evidence towards common agreement.

R. v. Randall and Weir (NSSC - Appeal)Facts: Randall had trafficking history. Seen talking to Weir who later tries to import drugs. Some evidence that R knew what W was doing, and may have bought drugs from W. Holding: Not guilty. No evidence to show that Randall was part of conspiracy to traffic marijuana, only that he was a historical trafficker who wanted to protect his source (Weir).Ratio: Mere knowledge of, discussion of, or passive acquiescence to an unlawful act is not agreement to commit that unlawful act. Must prove that accused actually agreed to the unlawful plot.

Multiple ConspiraciesR. v. Cotroni and Papalia [1979] SCCFacts: 4 accused charged with "unlawfully conspiring together to extort money in Ontario & Quebec". Holding: Multiplicity, not duplicity. Evidence shows 2 separate conspiracies: (1) Papalia & Swartz to possess extorted funds in Ontario & Quebec and (2) Cotroni & Viola & possible Papalia to acquire & have possession of same extorted funds w/in Quebec only. Papalia & Swartz convicted. Cotroni acquitted since


charged conspiracy included both Ontario & Quebec - therefore, the evidence against him was not in respect of the charged conspiracy. Rule: Where 2 or more conspiracies alleged, word Indictment properly so that it covers all alleged conspiracies, objects & jurisdictions.

Duplicity: Goes to form. When charge is so broad it covers more than one conspiracy. Bad form. Can be quashed as accused doesn't know what case to meet.

o E.g. "Tonya Harding and Jeff Gillooly did conspire to break Nancy Kerrigan's knee and steal her golden skates."

Multiplicity: Goes to evidence. Charge lists one conspiracy, but evidence shows multiple conspiracies. Multiple conspiracies are okay so long as Crown has evidence to prove actual charged conspiracy.

Search and SeizureSearch and Seizure cases focus on the balancing test b/t the individual's right to be left alone & the need for the state to investigate and prevent offences (Hunter)

Offence is committed evidence is produced Evidence gained through a warrantless or warrant search: confessions, samples, guns, etc. Evidence generally must be admitted in order to gain a conviction s.8 violation (unreasonable search & seizure) leads to s.24(2) determination of exclusion of evidence.

The Cost of the CharterFocus: Criminal trials were previously focused on conduct of accused (unless determining voluntariness of confessions). Essentially truth-gathering exercises. All admissible evidence would go towards determining the truth. Now trials inevitably deal w/ police conduct, alleged Charter violations & admissibility of evidence.

Relevance/Connectedness: Pre-Charter criminal trials were fairly easy to understand by lay citizen - evidence was tendered & determination of guilt or innocence was made. Now Charter arguments involve suppression of evidence which cause average citizen to doubt system when alleged murderer gets off.

Time: Focusing resources on Charter issues can eat up the time of the court, lawyers and clients.

Flexibility: Charter prevents Parliament from enacting laws which conflict with the Charter. For example, the UK has started prosecuting double jeopardy trials, which would not be allowed under the Charter.

Pre-Charter Search & Seizure CasesEccles v. Bourque [1975] SCCFacts: Cops enter Eccles' apt to search for Eddie Cheese w/o a warrant. Eccles sues police for trespass.Issue: Is there legal authorization for police trespass?Ratio: No statutory authorization to trespass (CC, s.25 only provides justification for arrest, but not to trespass to arrest). But there is a common law right to trespass to search for fugitive if there are (1) reasonable and probable grounds that person sought is w/in premises & (2) proper announcement is made. Exception for exigent circumstances.

1) Reasonable and Probable Grounds: Determination for R&P grounds must be made on what is known at time. Whether person sought is actually on premise is irrelevant. Can rely on hearsay.

2) Proper announcement:o Notice of Presence (knock)o Notice of Authority (we're cops)o Notice of Purpose (here to arrest A)

Holding: Eccles loses b/c cops justified under common law to search premises so long as they had appropriate legal authority (Reasonable and Probable Grounds and Proper Announcement).

R. v. Colet [1981] SCCFacts: Police had warrant to seize guns from Colet's shack (b/c Colet threatened to protect his home from demolition by way of shooting people). Police try to seize guns, Colet throws gas on them. Colet charged w/ attempted murder - claims police were trespassers.


Ratio: Warrant to seize warrant to search. Colet had privacy interest in dwelling-house (even if just a shack). Parliament must give explicit authorization to override this privacy interest.Holding: Not guilty. Police acted w/o authority in entering premises.

Post-Charter Search & Seizure CasesNote that s.8 and s.24(2) are only engaged when an accused's own Charter rights are violated. The Charter does not allow an accused to complain about police misconduct which does not actually violate the accused's Charter rights. For example, if police trespass onto a neighbour's property in order to sniff at accused's property & obtain a search warrant and discover a grow-op, accused cannot claim that his Charter rights have been breached (absent an "abuse of process" argument).

s.8 protects a Reasonable Expectation of Privacy / Prior Judicial AuthorizationHunter v. Southam [1984] SCCFacts: Hunter (Dir of Combines Investigation Act) authorizes sweeping search of Southam office under CIA, ss.10(1)-(3).Issue: Is the legislation unreasonable under s.8?Ratio: Section 8 protects reasonable expectation of privacy. Must balance interests b/t public being left alone by gov't and gov't needing to intrude to further goals. Balancing test must come before search: prior authorization. Person granting authorization must be able to act judicially, not administratively.

1) Reasonable & probable grounds that offence committed & evidence to be found at place of search

2) Information provided on Oath3) To Independent & Neutral Arbiter capable of acting judicially

Holding: Searches violate s.8 as not sufficiently reasonable & commissioners not acting insufficiently judicial capacity as an independent arbiter.

Warrantless Searches are Prima Facie Unreasonable / s.24(2) factorsR. v. Collins [1987] SCC Facts: Based on hearsay evidence from other cops, cop tackles Collins w/ flying chokehold to prevent her from swallowing drugs. Finds drugs in her hand. Officer's R&P grounds challenged. Ratio: Accused must prove s.8 breach on BOP. But if search was warrantless, then search is presumed to be unreasonable & onus switches to Crown to rebut presumption of unreasonableness by showing:

1) Search authorized by law2) Law is reasonable3) Search was conducted in reasonable manner

Where Crown fails to rebut presumption, s.8 is violated. Accused must then prove s.24(2) on BOP to exclude evidence: Would admission of evidence bring administration of justice into disrepute?

1) Is trial fairness affected?a. Real evidence won't affect trial fairness

2) Seriousness of Charter breach?a. Based on police conduct

i. Availability of other investigatory techniques w/o breaching Charterii. Good faith (i.e. police thought they were following the law)

iii. Exigent circumstances3) Effect of exclusion on administration of justice?

a. Seriousness of offenceb. Importance of evidencec. Reliability of evidenced. Look at long-term impact of inclusion & exclusion - would condonation of bad police

conduct lead to disrepute? Holding: New trial ordered, so that improperly-excluded hearsay evidence can be properly considered.

Evaluating TipsR. v. Debot [1989] SCCFacts: Reliable informant tells police that Debot will be doing drug deal. Police observe confirmatory evidence. D's car stopped. Warrantless frisk search - drugs found on D, but not in car.


Issue: Was search reasonable in the context of the information received?Ratio: Three factors to consider when evaluating information relied upon to justify search:

Compelling: Was information predicting commission of offence compelling?o Informant's tip should be detailed - not conclusory ("she's holding") or mere rumour/gossip

Credible: If based on a "tip", was the source credible? Corroboration: Was information corroborated by police before search conducted?

Holding: Reasonable & probable grounds for search, as tip found compelling/credible & corroborated by surveillance.

Reasonable Expectation of Privacy in Perimeter of Dwelling-House / Bad WarrantsR. v. Kokesh [1990] SCC Facts: Based on tip & aerial surveillance, police become suspicious of accused (no R&P grounds). Perform warrantless perimeter search of A's house & find enough suspicious activity [slight pot odour, condensation, covered windows, slight humming] to get search warrant. Police search house & find grow-op. Moderate tip Warrantless Perimeter search Warrant Search Major EvidenceDefence: Perimeter search unreasonable & led to evidence which led to warrant, warrant unreasonable.Holding: Not guilty. s.8 violation b/c cop didn't have R&P grounds [to believe that drug contained w/in house] to conduct warrantless perimeter search, therefore not authorized by law (NCA, s.10). Pot excluded under s.24(2) under #2: Seriousness of Breach as cops did not do search in good faith (didn't know if they legal authority to search) and #3: Effect of Exclusion as court did not want to condone deliberate unlawful conduct. Note: Court of Appeal incorrectly applied balancing test after-the-fact (police have interest in busting grow-ops) rather than before search (did police have R&P grounds to believe that grow-op in this house?)Ratio: Privacy interest in perimeter of house. Warrantless searches are prima facie unreasonable, unless authorized by law. Where law requires R&P grounds, suspicion is insufficient. If police only have a suspicion, they must leave the suspect alone. Warrants based solely on information gleaned in violation of the Charter is invalid.

R. v. Grant [1993] SCCFacts: Police have reasonable grounds to believe Grant has drugs on property based on tip and conduct perimeter search of house. NCA, s.10 allows warrantless searches outside dwelling-house if reasonable grounds. Police obtain search warrant for house based on perimeter search & new evidence - find grow-op. Defence: NCA, s.10 unconstitutional b/c it allows police to conduct warrantless searches of any place other than a dwelling house w/o seeking warrant on oath in front of neutral arbiter [goes against Collins rule that warrantless searches are prima facie unreasonable and Hunter req't of prior judicial authorization]. If warrantless search is prima facie unreasonable, then legislation is unreasonable & should be struck down.Crown: Statute should be read down to require warrant for search of any place (incl. dwelling house) except in exigent circumstances (loss of life or loss of evidence). Holding: Legislation read down to require warrant for search of any place where warrant is obtainable, except in exigent circumstances. s.8 breach found b/c legislation was unreasonable. But evidence admitted under s.24(2) b/c cops acting in good faith (though the law was okay).

Distinguish from Kokesh: Police in Grant had R&P grounds for perimeter search, as opposed to "suspicion" in Kokesh. Therefore Grant cops acting in good faith.Ratio: To rebut presumption of unreasonableness, the law authorizing the warrantless search must be reasonable. A law is reasonable if it meets the Hunter test or in limited exceptions (i.e. exigent circumstances, borders, etc). Warrants based on a mix of unconstitutionally & constitutionally permitted information must be examined to determine whether warrant would still have been issued if invalid facts excised from information (Grant).

Definition of a SearchR. v. Evans [1996] SCCFacts: Police suspicious of house, do visual perimeter search (okay). Police go to knock on door "to communicate" and "get a whiff". Police smell pot & enter to "freeze premises" while search warrant obtained. Grow-op discovered.


Ratio: A "Search" occurs when a person's reasonable expectation of privacy is diminished by investigatory techniques. Implied license to knock only for purpose of allowing ppl to communicate w/ occupant - anything beyond that purpose does not have implied authorization. Holding: s.8 breach b/c police violated reasonable expectation of privacy w/ warrantless search, but evidence admitted under s.24(2) b/c cops acted in good faith (thought sniffing was okay vis-à-vis Kokesch).

Reasonable Expectation of Privacy is based on the Totality of CircumstancesR. v. Belnavis [1997] SCCFacts: Police pull over car & question driver & passengers. While questioning, they find garbage bags in car filled w/ clothes w/ price tags still on them. All occupants charged w/ possession of stolen property.Holding:

Driver: s.8 violation as reasonable expectation of privacy in car found, but evidence admitted under s.24(2) b/c breach was not serious (lowered expectation of privacy in car, due to policy interest in maintaining safe roads).

Passenger: no s.8 violation as no reasonable expectation of privacy in car as passenger. Therefore evidence automatically admissible.

Ratio: Reasonable expectation of privacy to be determined on basis of the totality of the circumstances Presence at the time of the search Possession or control of the property or place searched Ownership of the property or place Historical use of the property or item Ability to regulate access, including the right to admit or exclude others from the place Subjective expectation of privacy Objective reasonableness of the expectation

Question: Are these factors reasonable? Does s.8 protect "people, not places"?

Searches Incidental to ArrestSearches incident to arrest involve two components: (1) arrest, then (2) search.

Lawful Arrest: reasonable & probable grounds Scope: officer safety / protection of evidence / discovery of evidence

R. v. Caslake [1998] SCCFacts: Cops impound Caslake's car after roadside arrest (poor guy pees & is arrested when drugs found by pee spot!). Car searched 6 hours later for "inventory purposes". Drugs & cash found in car. Crown claims that inventory search was search incidental to arrest & therefore authorized under common law.Ratio: Warrantless Searches Incidental to Arrest are authorized at common law if they are done for a valid purpose: (1) ensure safety of police & public, (2) prevent evidence destruction, (3) discover evidence. Police must have reasonable basis to believe that search fulfills one of these purposes (lower than R&P grounds). Police have discretion to search - do not need to actually search. Delay & distance of search from arrest do not automatically preclude search from being incidental to arrest - may simply cause a negative inference.Holding: Search not w/in scope of SIA ("inventory"), therefore s.8 violation. But evidence admissible under s.24(2) b/c trial was still fair (real evidence), breach not serious, and exclusion would have detrimental effect.

Stillman: SIAs do not allow violation of bodily integrity - special warrant req'd

Standards for Searches in Other SituationsR. v. Monney [1999] SCCFacts: Customs search - Monney acting very suspiciously at Pearson customs (origin, lied to officer, etc). Officer suspected him of being drug swallower. M strip-searched & detained in drug loo. Eventually consented to urine test w/ positive results. Arrested & confessed to swallowing 84 heroin pellets. Passed pellets in drug loo. Ratio: Hunter standard doesn't apply at border crossings - lower expectation of privacy at borders due to state need to control borders. Three types of border searches:

1. Routine questioning accompanied sometimes by bag searches


2. Strip search or skin search w/ no personal ID info collected about accused (incl. "bedpan vigils"): only need reasonable suspicion

3. Body cavity search w/ personal ID info (i.e. DNA) collected (incl. x-rays): no caselaw yet Holding: Drug loo search falls under 2nd category as no personal info collected (can't get DNA from urine or feces). Search was reasonable b/c it was authorized by law (Customs Act permitted search if customs officer had "reasonable suspicion".

R. v. M.R.M. [1998] SCCFacts: Vice-principal gets tip that 13 y.o. student will be selling pot at school dance - detains kid in office - calls police to observe - VP searches kid & finds pot. Police arrest kid.Holding: Teacher not acting as agent of police. Search would've happened regardless of police presence. Primary motive was for school discipline, not to prevent criminal activity. Search was reasonable as authorized by law (Education Act) which is reasonable b/c lower standard required for teachers to act quickly to protect school safety. Ratio:

State Agent Test: Would the exchange b/t the accused & the informer have taken place regardless of the intervention of the state? If yes, then informer is not state agent. Cooperation w/ police & presence of police is insufficient to turn informer into agent.

o Where school authority acting as state agent, R&P grounds & warrant required for search.

Lower Standard than Hunter for Schools: No warrant req'd for school authority [not acting as agent of the state] to search student, as not practicable for school environment1) Only need reasonable grounds that school rule is or is going to be violated, and2) Evidence will be found at location or person to be search

Courts should grant deference to school authorities who are in best position to assess tips on rule breaches (see Debot: compelling nature, credibility & corroboration). The following may constitute reasonable grounds in this context:

Information received from one student considered to be credible Information received from more than one student A teacher's or principal's own observations Or any combo of these pieces of information which school authority considers to be

credible

Searches Incident to DetentionInvestigative Detentions occur because of happenstance - police do not know whether any illegal activity has occurred w/o further evidence. Common theme in SIDs is that they are (1) unplanned and (2) brief.

Searches incident to detention involve two components: (1) stop, then (2) search. Lawful Detention: reasonable suspicion (objective & subjective) to detain, related to ongoing or

recent crime - take into account the totality of the circumstances Scope: officer safety only

Dedman v. The Queen [1985] SCCFacts: Police set up roadblock in area w/ high rates of impaired driving. All cars must go thru roadblock, regardless of whether driver shows signs of impairment. Accused charged with impaired driving. Ratio: 2-stage Waterfield test:

1) Police powers recognized as deriving from nature and scope of police duties at common law. Police powers therefore include investigating crime & protecting people and property.

2) Look at whether conduct justified reasonably necessary interference. Balancing test b/t importance of public interest & nature of liberty to be interfered with.

Holding: Police duty to protect people from drunk drivers outweighs freedom to drive around on highways. Roadblocks allowed. [Note that breathalyser samples are a statutorily authorized search]

R. v. Mann [2004] SCCFacts: Cops respond to B&E. Find Mann near scene. M matches suspect description. Cops stop M and ask for name - patdown for weapons - cops feel soft bag in M's pocket and remove it - find bag of drugs.


Ratio: Police have CL power to conduct investigative detention where they have both subjective & objective "reasonable suspicion" to detain a suspect in relation to an ongoing or recent crime, taking into account the totality of the circumstances (Waterfield/Dedman). Note that high-crime nature of neighbourhood is not in itself basis for detention. Scope of SID is limited to officer safety.Holding: Investigative detention reasonable, given that M matched suspect description & was close to crime scene. But SID was not done for valid objective - cop could only search for officer safety - once soft object felt, no risk (i.e. not gun). Shouldn't have pulled bag out. Unreasonable search, therefore s.8 violation. Evidence excluded under s.24(2) due to seriousness of breach - search went beyond what was req'd to mitigate concerns about officer safety.

Practice Note: Police officers know that they can only search for "officer safety", so they will always testify that they searched for officer safety, and their notes will say so. Show them the police newsletter which tells them to do so, and ask them if they read it, or if they should have known about it. Judges are also slowly starting to define the circumstances that allow one to search for officer safety.

Strip SearchesR. v. B.W.B. [2002] BCCAFacts: Police informed that BWB dealing drugs & hiding it in underwear. Police confirm tip, detain BWB and order him to strip in the car. Drugs found. Accused arrested & taken to station.Ratio: Strip searches incident to arrest require all SIA factors and reasonable and probable grounds that strip search is necessary in the particular circumstances of the arrest (Golden). Strip searches should generally be conducted at police station, except in exigent circumstances and must always be conducted in a reasonable manner. Crown must prove legality of the strip search on BOPNote: In this case, strip search was done during detention & before arrest. Correct law is that strip searches can only be done as part of SIA, not SID [b/c why would you ever need a strip search for officer safety?]Holding: Strip search unreasonable and violated s.8, but evidence was admitted under s.24(2) as real evidence and good faith (hid BWB from wife ridealong).

Section 24(2): Exclusion of Evidence

Temporal Connection Required to invoke s.24(2)R. v. Goldhart [1996] SCCFacts: Police conduct warrantless perimeter searches of barn where they get a whiff of pot - they get a search warrant which leads to arrest of Goldhart & co-accused. Co-accused pleads guilty. Searches found to violate s.8 & pot excluded under s.24(2). But co-accused testifies against Goldhart b/c he's found religion & G is convicted. G argues that police wouldn't have found co-accused if evidence used to obtain warrant hadn't violated s.8. Holding: Co-accused's evidence admitted - insufficient cxn b/t s.8 breach & obtaining of co-accused's testimony to invoke s.24(2). Co-accused testified voluntarily. Rule: There must be sufficient proximity (temporal & causal connection) between the Charter breach & the impugned evidence in question in order for s.24(2) to be invoked.

Conscriptive Evidence vs Non-Conscriptive Evidence / Derivative Evidence / DiscoverabilityR. v. Stillman [1997] SCCFacts: Stillman arrested for murder after seen leaving party, crossing bridge w/ victim & leaving suicide note after victim's death. Lawyers give cops letter saying they can't interview S or collect any DNA w/o lawyer present. After lawyers leave, cops collect hair, pubic hair & teeth samples, mouth swab & used Kleenex from garbage. S released until DNA samples come back - arrested again w/ more samples taken.Ratio:

SIAs do not allow violation of bodily integrity - special warrant req'd When an accused who is not in custody discards a Kleenex or cigarette butt, the police can collect

& test these items w/o worrying about consent. Whether an accused relinquishes his privacy interest in items containing bodily fluids (i.e.

discarded Kleenexes) while in custody will depend on the facts. Holding: S had high reasonable privacy interest in hair & other body samples b/c DNA obtainable. Warrantless search - presumption of unreasonableness. Crown unable to rebut as scope of SIA does not


include search for bodily samples: not authorized by law. S didn't relinquish privacy interest in used Kleenex - therefore, seizure unreasonable. s.8 violation. Bodily samples were all excluded under s.24(2) as conscriptive, non-discoverable evidence & impact on trial fairness. Kleenex was discoverable (police could've gotten warrant) & breach not serious, etc, therefore admissible.

Arrest in Dwelling House

Warrant required to arrest in dwelling-houseR. v. Feeney [1997] SCCFacts: Cops go to Feeney's trailer w/o warrant to investigate murder. They knock & announce themselves. They enter when there is no answer. Find sleeping accused w/ blood on his shirt. Accused arrested.Holding: s.8 breach b/c no warrant. Evidence inadmissible under s.24(2) b/c of seriousness of breach (no subjective belief of reasonable grounds for arrest). Ratio: Charter has increased req'ts for arrests w/in dwelling houses since Eccles v. Bourque.

Warrant required for arrest w/in dwelling-house unless exigent circumstances ("hot pursuit")o Reasonable & Probable Grounds (subjective & objective) that offence committed &

person sought is within dwelling houseo Proper Announcement

Notice of Presence Notice of Authority Notice of Purpose

Feeney warrant extends to houses of 3rd parties - not just suspectR. v. Adams (2001) OntCAFacts: Adams lived in rooming house. Cops tricked manager into letting them in. Found A in laundry room, arrested him & found drugs in pockets. No warrant to arrest or to search.Ratio: Feeney not limited to suspect's dwelling-house - you need a Feeney warrant regardless of whose house the suspect is in.Holding: s.8 breach b/c no warrant to arrest w/in dwelling house. Conceded by Crown that evidence should be excluded under s.24(2). Not guilty.

"Hot Pursuit" Exception R. v. Haglof (2000) BCCAFacts: Cops attend car accident location - witness IDs car & says it was male driver w/ female passenger. Cops go to RO's house 15 minutes after accident. Neighbour confirms that car headed into garage w/ male driver & female passenger. Cops knock on door & announce - see movement in window, but no response. Cops knock again & enter house 35 minutes after accident. Haglof arrested. House searched to secure it & grow-op found in basement.Ratio: No Feeney warrant required where "hot pursuit". Cop who sees offence & who arrests during "hot pursuit" need not be same person. Cops can take time to locate accused, confirm presence & wait for backup before entering DH w/o warrant - so long as there is "sufficient proximity to be considered one transaction". "Hot Pursuit" exception underscored by need to prevent criminals from seeking refuge in DHs.Holding: 35 minutes was okay for "hot pursuit" exception. No s.8 violation b/c search reasonable (authorized by law). But even if s.8 violation, then evidence wouldn't have been excluded under s.24(2): real evidence, non-serious breach (good faith, R&P grounds).

Forced entry okay to ascertain location, life & safety of disconnected 911 callerR. v. Godoy (1998) SCCFacts: Dropped 911 call from Godoy's home. Police arrive, knock, ask if everything okay - G says it is and tries to close door - police prevent him & enter house - find wife crying & injured - she says G hit her. Police arrest G. G resists & hits police - charged with assaulting cop w/ intent to resist arrest.Ratio: Police have common law duty to investigate dropped 911 calls. Forced entry okay to ascertain location, life & safety of 911 caller. Scope of search limited to (1) finding caller, (2) finding out why caller


called 911 and (3) assisting w/ caller's problem. Once inside home, police may then get R&P grounds to arrest suspect - no Feeney warrant needed b/c dropped 911 call is "exigent circumstance".Holding: Cops authorized to enter G's home b/c of dropped 911 call - had to determine caller's location & safety. Wife's comments gave them R&P grounds to arrest G for assault.

Other Developments

Reasonable Expectation of Privacy if Access over ControlR. v. Buhay [2003] SCCFacts: Buhay puts bag in rented bus depot locker (notice says that person can use for certain period of time before contents removed). Guards suspicious - smell pot from locker - open locker w/ master key - see bag w/ pot - call police. Guards open bag for police who seize it & replace w/ pager number to be called by B. One cop says he never thought of getting warrant / other cop says he didn't think he had enough grounds for warrant and didn't think B had reasonable expectation of privacy in locker.Holding: s.8 breach - no exigent circumstances, presumption of unreasonableness not rebutted. Evidence excluded under s.24(2) b/c of seriousness of breach (no R&P grounds for warrant). Acquitted.Ratio: Reasonable expectation of privacy in bus depot locker - when you have control over access, paid for exclusive access & no notice given that locker can be searched. Hunter always applies absent exigent circumstances.

Credibly-Based ProbabilityR. v. Billings [2004] BCSCFacts: Cops obtain warrant to search Billing's apartment in "hopes of finding evidence". Warrant was for certain items which cops find - but cops also seize computer (which roommates say has disturbing statement on it) - police obtain warrant to search computer's hard drive & recover incriminating statement. Holding: Warrant invalid b/c it was "fishing expedition" and just a suspicion. s.8 violated since warrant bad. All evidence excluded under s.24(2) due to seriousness of breach (sanctity of home).Ratio: Warrant must be based on a credibly-based probability (more than a mere suspicion). Look at totality of evidence, including hearsay and reliable & detailed informant evidence.

Information must disclose a substantial basis for the existence of the affiant's belief. Where Information is based on a police informer, the reliability of the information must be

apparent & is to be assessed in light of the totality of the circumstanceso Hearsay can provide R&P grounds.o A tip alone is insufficient to provide R&P groundso Reliability of tip to be assessed by "totality of the circumstances"

Degree of detail of the tip Informer's source of knowledge Indicia of informer's reliability such as past performance or confirmation from

other investigative sourcesIf there is a series of warrants & searches, look at whether there was temporal or causal link from breach to evidence - if so, then all evidence is impugned and unconstitutionally obtained and s.24(2) invoked.

FLIR: Forward Looking Infrared ImagingR. v. Tessling (2004) SCCFacts: Cops receive tip that Tessling has grow-op. No other evidence, so they take overhead infrared images of T's house (FLIR) to determine amount of heat radiating off walls. Ratio: No reasonable expectation of privacy in heat emissions coming from house, as it does not reveal any core biographical data about accused. FLIR data is meaningless on its own - but can lead to R&P grounds for search warrant if paired w/ other evidence. Warrant would not be granted solely on FLIR data.

Test for determining whether reasonable expectation of privacy in FLIR:1) What is the subject matter of the FLIR image?2) Does the accused have a direct interest in the subject matter?

a. Yes, surveillance of his home3) Does accused have a subjective expectation of privacy in the subject matter?


a. Subjective expectation of privacy in what escaping heat may reveal about inside of home.4) Was the expectation of privacy objectively reasonable?

a. Place searched: Exterior of house – high privacy b. Was subject matter on public view? No, as heat loss can be viewed by melting snow

too - this is not x-ray technologyc. Was subject matter abandoned? No - heat emissions not "abandoned"d. Was info already in possession of third parties? Not in any form that could be usede. Was police technique intrusive in relation to privacy interest? Present capabilities do

not provide much information; warrant could not be granted solely on FLIR imagef. Was use of surveillance technology itself objectively unreasonable? Nature & quality

of information about home activities that police obtain is ‘meaningless’ on its owng. Did FLIR expose any intimate details of accused’s lifestyle or part of his core

biographical data? FLIR is not equivalent of police inside the home

Wiretaps and Other Electronic Surveillance

Warrants Required for WiretapHunter rule applies as usual: Affidavit must be presented to neutral judicial arbiter who must be satisfied that Criminal Code statutory conditions for wiretap are met before the specific warrant will be issued.

s.178.13(1) (CC provision for wiretap warrants): In order to grant a warrant for a wiretap, judge must be satisfied that:

1) It would be in the best interests of the administration of justice to do so2) Last Resort Clause (Araujo: "no other reasonable alternative, given the circumstances")

a. Other investigative procedures have been tried and have failed,b. Other investigative procedures are unlikely to succeed or,c. The urgency of the manner is such that it would be impractical to carry out the

investigation of the offence using only other investigative procedures

R. v. Duarte (1990) SCCFacts: Cop & informer set up warrantless wiretapped meeting with Duarte. Crown claims that CC allows warrantless "participant surveillance" wiretapping if only one party of conversation consents - and that this applies to situations where cop is one of the parties. Issue: Does ‘participant surveillance’ violate s.8 due to lack of warrant?Ratio: Warrant required for wiretap. Granted where (1) R&P grounds for offence & evidence related to offence will be found via wiretap, (2) other investigative techniques will fail or have low chance of success, and (3) granting of wiretap is in best interests of administration of justice.

Electronic surveillance generally violates s.8, as ppl have a reasonable expectation of privacy in their own words - and expect that they will not be recorded by the state. Regulation of e-surveillance is necessary to prevent state from having total discretion to record & transmit words - otherwise privacy would be meaningless. CC already has provisions on how police can get prior judicial authorization for wiretaps - to allow cops to use warrantless "one-party consent" wiretaps would be illogical.

Holding: One-party consent wiretap was s.8 violation, but evidence admitted under s.24(2) as officers acted in good faith.

R. v. Araujo (2000) SCCFacts: Case against Araujo based on wiretap evidence. Warrant granted b/c police wanted to use wiretap w/ other investigative techniques. Cross-examination of requesting officer found that he was uncredible. TJ said cop's lack of credibility affected his affidavit & quashed warrant & excluded evidence.Ratio: "No other investigative techniques" requirement for wiretap warrant = "practically speaking, no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry". Affidavits must be full & frank, clear & concise. Avoid boiler-plate language. Try to get affidavit from those w/ first-hand knowledge of situation.


Holding: Affidavit made it clear that prior investigative techniques had failed & cops could not investigate further w/o wiretapping. Credibility of officer was temporally & logically far removed from swearing of affidavit. Warrant should not have been quashed, as other information supported it. New trial ordered.

Procedure for Challenging Validity of Warrant An accused can no longer challenge the validity of a wiretap warrant as of right - must seek leave to cross-examine.

1) Seek leave from judgea. Show some basis for challenge - relevance to statutory conditions for warrant (Garofoli).

Threshold is not an onerous one (Pires/Lising).b. If basis shown, then cross-examination allowed

2) Cross-examine affiant - did they have the grounds necessary to meet statutory conditions? (i.e. R&P grounds)3) Could the authorizing judge have allowed authorization based on the acceptable record? Reviewing judge should

show deference to authorizing judge, as presumptively valid court order (Garofoli)a. If yes, then warrant allowedb. If no, then warrant bad. Go to s.24(2) or CC provisions to determine admissibility of wiretap evidence.

R. v. Garofoli (1990) SCCFacts: Cops get warrant to intercept Garofoli's communications based on informer information. G wants to challenge validity of warrant.Holding: Basis found for cross-examining affiant; new trial ordered so G could cross-examine affiant.Ratio: Procedure for challenging validity of warrant for wiretaps:

1) Accused must seek leave from trial judge ("reviewing judge") to challenge validity of warrant by showing "some basis" that statutory conditions have not been met

a. Fraud, non-disclosure, misleading evidence & new evidence are relevant in determining whether statutory conditions were met - but are not prereqs for review

2) If "some basis" that stat conditions not met, then TJ should grant leave to cross-examine on validity of warrant

3) Reviewing judge should not substitute their own decision - if there is some evidence that the authorizing judge could've granted the warrant, then it cannot be interfered with (b/c it's a presumptively valid court order).

Procedure for reviewing confidential informant information: Counsel can no longer cross-examine affiant as of right. Counsel must convince TJ that they have a basis for their challenge before they can cross-examine. Must show that statutory conditions not met.

R. v. Pires, R. v. Lising (2005) SCCFacts: TJ found that portion of affidavit intentionally misleading, but not in relation to statutory conditions for authorization. Denied cross-examination on validity of warrant. Accused challenge Garofoli req't of "some basis" as being unconstitutional by violating s.7 right to cross-examination (full answer & defence).Ratio: Right to cross-examine is not unlimited nor absolute. Cross-examination is only allowed when it is relevant. In wiretap cases, relevancy is determined by whether there is a problem with the statutory conditions for the warrant: "the threshold is not an onerous one". Garofoli is still good law.Holding: Cross-examination not allowed. Convictions upheld.



It's a Conspiracy Charge! Will it result in a CONVICTION?

2 or more people involved in conspiracy (unlawful act)? (Penn)

Agreement: Do all co-conspirators agree to

the same illegal objective?

No Conspiracy

Intention: Do all co-conspirators intend to carry

out the illegal objective?(subjective)

Conspiracy = Agreement + Intention (O'Brien)

CONSPIRACYYES YES

NO

YES

Not Defenses: Withdrawal - but could argue that A never had intent in first place (Yip); Undercover cop w/ intent (Yip); Impossibility (Dynar); Multiplicity - if evidence proves charged conspiracy (Cotroni); Co-

conspirators not prosecuted (Yip)

DEFENSES

Attempt to Conspire to Commit Offence = bad charge / too remote (Dungey)

YES

Note that in Stew

art, the charge should have been "incite to rob". In the end, C

rown failed to prove "aid/abet conspiracy" b/c dif.

Objective.

No Conspiracy

No intent(O'Brien; Dungey)

Different Conspiracy (Yip)

Mere purchaser conspiracy to traffic (Rowbotham)

Different objective (Taylor) / Hub & Spoke vs indv'l conspiracies (MacDonald) / Different jurisdiction from charged conspiracy (Cotroni)

Acquiescence agreement - simply being around conspiracy (Randall/Weir)

Imaginary Crime (Dynar)

Duplicity (Cotroni)No evidence of

conspiracy BARD

YES

Accused #1 Accused #2AgreementIntention



It's a Conspiracy Charge!Now how do we PROVE it?

Accused can only be convicted by the evidence admissible against him (Guimond)

Acts, statements & documents

Accused's acts in furtherance of the conspiracy = proof of Agreement or Intention (O'Brien)

Direct & Circumstantial

Evidence

Accused's involvement in conspiracy proven BARD?

Try the Co-Conspirators' Exception! (Carter)

ConvictionYES

NO

Is there a conspiracy BARD, as charged in indictment?(on all the evidence, incl. co-conspirators' statements

Is there independent evidence directly admissible against accused that accused was a

member of that conspiracy, on BOP?

Acquittal

YES

NO

YES

Acts, statements and documents made by co-conspirators in furtherance of the conspiracy

are now admissible against the accused to determine his guilt.

Co-conspirators' exception does

not applyNO

Determ

ined by Trier of Fact (Jury)

Co-conspirators need not be proven

to be members of conspiracy

Statements are only admissible against the maker (i.e. admissions of co-accused not admissible against accused)

Basis of Rule: Implied authority of conspiracy members to act/speak in furtherance of common purpose on behalf of others (Mapara)

Necessity:Cannot compel co-conspirator declarant to testifyDesirability of joint trials for conspirators Evidentiary value of statements made in furtherance of conspiracy

Reliability:Common enterpriseSpontaneity

Guimond explains why inconsistent verdicts occurA1 acquitted / A2 convictedA1 pleads guilty early / A2 acquittedBoth convicted / only A1 appeals & is acquitted

Conspiracy is complete at time of A&I (O'Brien)

Mere words Insufficient w/o intent

Evidence of alleged co-conspirator's control over unlawful purpose may

show agreement (Carvery)

Jury may still A innocent - need to find that A was member of conspiracy

BARD to convict


Did the accused have a reasonable expectation of privacy in the item or location searched?

Was there a search?

Was the search conducted by state agents?

Was the search reasonable?

Should the evidence be excluded under s.24(2)?

Did the search violate s.8 and should the evidence be excluded under s.24(2)?

YES

YES

YES

Would the admission bring the administration of justice into disrepute?

Evidence Excluded!

YES

s.8 not invoked - no Charter breach. E

vidence admissible.

NO

s.8 breach

NO

YES

NO

NO

Evidence adm

issible.

NO


Look at strength of relationship b/t Accused & Location of Contraband Strong connection = inference of knowledge & control

Factors: Behaviour of suspect / Access to Item / Contraband use


Accused charged with Possession. What does the Crown need to PROVE?

Substantive Offence: What is the forbidden substance?

Guns (Amado, s.90-91)Drugs (Brienza, CSA, s.4)

What category of possession?

Manual Handling of Contraband?

Defining Possession - s.4(3), CC (Amado)Actual Possession (s.4(3)(a)): A person has anything in his possession when he has it in his personal possession.Constructive Possession (s.4(3)(a)(ii)): A person has anything in his possession when he knowingly has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another personJoint Possession (s.4(3)(b)): Where one of 2 or more persons with the knowledge & consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

Personal / Actual Possession Constructive Possession

More than 1 person involved?

Joint Possession

YESYES

NO

NO

Crow

n must prove these elem

ents

Control: Accused had power/authority over contraband. Right to grant/withhold consent

(Fisher). Ownership not required

Knowledge + Consent = Control:

Accused had some measure of control over contraband. Power to consent/Refuse

Hot potato exception: Fleeting possession control.

Manual handling

Knowledge: Inference of knowledge from manual handling. Common sense inference of knowledge if found on person or in hand

Knowledge + Manual Handling = Control

Knowledge: Accused had knowledge of contraband

Someone other than accused had possession of contraband

Knowledge: of other guy's possession

Consent: Accused consented to other guy's possessionAmado - Not Guilty - no

knowledgeFisher - Guilty - knowledge inferred from scales & coke in drawerBrienza - Not Guilty - no control over motorcycle bagNguyen - Guilty - joint possession b/c of control/consent

Constructiv

e


An offence has been committed! Will the evidence obtained in the search be admissible?

Did the accused have a reasonable expectation of privacy? (Hunter) s.8 does not apply Evidence admissible

NO

Was there a search? (Evans)Was the reasonable expectation of privacy diminished by a lawful investigatory technique?

s.8 does not apply. Evidence admissible.

Purposive, broad & contextual interpretation: Balancing privacy interest vs. state interest in law enforcement (Hunter)

Accused must prove that her own Charter right was violated on BOP (Collins)

Look at totality of the circumstances: (Belnavis/Edwards)Existence of subjective expectation of privacyObjective reasonableness of expectation

Presence at time of the searchPossession/control of property/place searchedOwnership of property or place [but Hunter says

ownership not req'd]Historical use of property or itemAbility to regulate access, including right to admit or

exclude others from the place

Was search done by the state or agents of the state?Private security guards state agents (Buhay)Would the search have taken place but for the intervention of the state or its agents?

NO

Personal Privacy: strongest, protects bodily integrity Territorial Privacy: home is your castleInformational Privacy: biographical core of personal info - right to decide what, when & how info is communicated to others (Tessling)

Sample searches: sniffing (Kokesch), wiretaps (Duarte), bedpan vigils (Monney) - but not FLIR as current tech doesn't reveal core biographical data (Tessling) or where item "abandoned" (i.e. trash) out of custody (Stillman)

Reasonable Expectation of Privacy diminished by current FLIR technology? (Tessling)What is the subject matter of the FLIR image?Does the accused have a direct interest in the subject matter?Does accused have a subjective expectation of privacy in the subject matter?Was the expectation of privacy objectively reasonable?

Place searchedWas subject matter on public view? Was subject matter abandoned?Was info already in possession of third parties? Was police technique intrusive in relation to privacy interest? Was use of surveillance technology itself objectively unreasonable? Did FLIR expose any intimate details of accused’s lifestyle or part of his core biographical data?

PRIVACY INTEREST FOUND: Dwelling house (Colet; Evans; Feeney)Car if Driver but not always Passenger (Belnavis)Perimeter of house(Grant; Kokesch)Laundry Room (Adams)Body (Stillman; Collins; BWB; Monney)Office (Hunter)Bus locker (Buhay) - if A has control over access, paid for access & no

notice of search postedDiscarded Kleenex if in custody (Stillman)Private Communications (Duarte)School (MRM)Low expectation of privacy does not remove s.8 protection altogether. But see Monney for where lower expectation of privacy at borders goes to reasonableness of search.

Was the search reasonable?YES

YES

YES

NO


Presumption of Unreasonableness rebuttable by Crown if (Collins):Authorized by lawLaw is reasonable

Search conducted in reasonable manner

Authorized by Law? Statute

Common Law

Charter B

reach! Go to s.24(2)

Law is Reasonable?

Search conducted in Reasonable Manner?

Exigent Circumstances: Warrantless searches okay if R&P grounds existed to obtain warrant before searchCSA, s.11(7) (Carlson)CC, s.529.3 (incl. destruction/loss/removal of evidence)

Search Incident to Arrest (Caslake): ARREST, then SEARCHArrest was lawful

R&P grounds that offence committed (obj & subj)Warrant req'd if arrest in dwelling house (Feeney) of suspect or 3rd party (Adams) unless exigent circs / hot pursuit (Haglof) or 911 call (Godoy)

Search was for valid objective: reasonable basis only (Caslake)Ensuring safety of police & publicPrevent evidence destructionDiscovery of evidenceSIA bodily samples (Stillman) or inventory (Caslake)

Search not abusiveStrip Search: Crown must prove R&P grounds for strip search necessity BOP. Police station generally. Field strip searches only in exigent circs & must be reasonable (B.W.B.)Discretion: Police have discretion to do SIA - search not req'd.Delay/Distance of Search from Arrest: may lead to -ve inference that search not truly incidental to arrest

Search Incident to Detention (Waterfield; Mann): STOP, then SEARCHDetention was lawful

Articulable Cause: Reasonable suspicion to detain (obj & subj)Totality of circs - related to ongoing/recent crime

Search was for valid objectiveOfficer Safety Only (reasonable basis based on obj & subj info)

Search not abusive

Flying tackles & chokeholds are unreasonable (Collins)

Law is reasonable where it meets Hunter test or in limited exceptions: NCA, s.10 unreasonable: warrantless searches w/in house (Grant)School Act reasonable b/c teachers can't get warrants quicklyCustoms Act reasonable due to need to protect borders / lower REP

s.529 warrant to enter dwelling house to arrest

(Feeney)R&P grounds (subj & obj) to arrest (offence committed) & that person sought will be inside DHProper Announcement (Eccles)

Notice of Presence (knock)Notice of Purpose (cops)Notice of Authority (arrest)

No warrant req'd: Exigent Circs like Hot Pursuit (Haglof) or 911 call (Godoy). 35 min = "hot" pursuit if "sufficiently proximate to form 1 transaction".

No announcement req'd: R&P grounds that announcement would cause imminent harm, loss/destruction of evidence (s.529.4(1))

Applies to all DHs (Adams) - not just suspects' DH, but 3rd party too.

Missing any of these requirem

ents?Warrantless Search - Prima Facie Unreasonable (Hunter)

Education Act: school authorities (non-police-agent) can search students at school w/o warrant if (M.R.M.)Reasonable grds to believe breach committed & evidence to be foundInformation assessed in light of school circs (deference to school)

Customs Act: allows customs officers to conduct warrantless searches for (1) routine questioning & bag searches and (2) strip/skin search where no personal ID info collected (incl. "bedpan vigils") (Monney)

Common law right to be free

from trespass can only be limited by

clear statutory language (Colet)

Forced entry okay to protect life & safety of 911 caller only (Godoy). No Feeney warrant to arrest b/c exigent circumstances.


Charter Breach Found! Can we exclude the evidence?

Is there a temporal and causal connection b/t Charter breach & obtaining of the impugned evidence (Goldhart; Billings)?

s.24(2) analysis: Would the Admission of the impugned evidence bring the administration of justice into disrepute (Collins)?

1) Trial Fairness2) Seriousness of Breach

3) Effect of Exclusion on Administration of Justice

Conscriptive? (Stillman)CompelledStateBody

Need not show unreliabilityDid A have control over whether to hand evidence over to state?

Discoverability (Stillman)?Independent SourceInevitable Discovery

Crown must prove on BOP

(Facially) Non-Conscriptive

Derivative (Stillman)?Causally connected to conscriptive evidence?

Go to Collins #2 & #3

Start with evidence obtained most proximate to Charter breach & work towards evidence

arising more remotely (Burlingham)

YES

NO

NO

YES

Collins #1: Impact on Trial Fairness

Exclusion in most circumstances

NO

#2: Seriousness of BreachGood Faith (Grant: police thought warrantless NCA, s.10 DH search ok)Technical in natureObtrusiveness of searchR&P grounds for search (Casklake/Belnavis)Urgency or necessityDiscoverability: Failure to explore other invest. techniques (Buhay)

#3: Effect of Exclusion on Administration of JusticeSeriousness of offence Reliability of evidenceImportance of evidence to caseNot remedy for police misconduct, but condonation may = disrepute

s.24(2) not engaged.Evidence admittedNO

Admissibility of Wiretap Evidence where Warrant Invalid


Was that search reasonable?

Was there a warrant?Prior Judicial Authorization Required:

Warrantless searches prima facie unreasonable (Hunter)Presumption of Unreasonableness

(Collins)NO

Is Warrant Valid? (Hunter)Independent & Neutral Judicial ArbiterInformation on OathR & P grounds that offence committed & that evidence to be found at place of search

R&P Grounds: Credibly-based probability. Suspicion insufficient (Billings). Hearsay & reliability of tips to be assessed in totality of circumstances.

Bad Information (Kokesch): Would warrant have been obtained if invalid facts excised from Info (Grant)?

Evaluating Tips (Debot): Compelling: Was the information compelling? [i.e.

detailed - not conclusory or mere gossip]Credible: If it was a tip, was it credible?Corroboration: Was information corroborated prior to

the search? [i.e. with surveillance]

What to seize? s.489 allows seizure of anything related to offence / PLAIN VIEW if prior authorization for entry (Billings)

Search Okays.8 does not apply

Evidence admissible

TJ common law discretion to

exclude (Buhay)

Charter Breach!Go to s.24(2) to determine whether evidence will be excluded

NO

YES

Wiretap Warrants (CC, s.178.13(1)) - see dif stat req'tsJudge must be satisfied that (Duarte)It would be in best interests of administration of justice to

grant warrantR&P grounds that offence committed & evidence related to offence will be found via wiretap

No other reasonable alternative, given the circumstances (Araujo)

Other investigatory techniques have failed or are unlikely to succeedExigent circumstances

After issuing wiretap warrant, packet must be sealed - Crown can refuse to disclose if subject to informer privilege

Challenging Wiretap Warrants (Garofoli / Pires & Lising)Obtain leave to cross-examine from courtDecision to grant leave is in discretion of trial judgeLeave to cross is granted only where cross is necessary to make full answer & defenseCross is necessary for full answer & defense where accused can show some basis for the view that cross will show lack of statutory

conditions for warranti.e. problems w/ informer reliabilitymust be more than speculation or mere assertionnot a onerous threshold (Pires)

Cross-ex limited to questions directed to establishing lack of basis

Reviewing judge must grant deference to Authorizing Judge - warrant will stand if AJ could have granted authorization, after excising fraudulent or misleading info.

Presence of fraud, non-disclosure, or misleading evidence is relevant solely to determine whether there still is some basis to issue warrant if those facts excised from consideration. Cops should submit full, frank & fair disclosure.

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