PRIVACY
PRIVACY ....................................................................................................................................................... 1
Australia ......................................................................................................................................................... 4
RIGHT TO PRIVACY ............................................................................................................................... 4
Development of a Right to Privacy in the Common Law? ......................................................................... 5
Johns v. Australian Securities Commission [1994] 116 ALR 567 ......................................................... 6
Bradley v. Wingnut Films Limited [1993] 1 NZLR 415 ........................................................................ 6
Malone v Metropolitan Police Commissioner [1979] Ch 344 ................................................................ 6
Breach of Confidence ................................................................................................................................. 6
Bibliography ............................................................................................................................................... 6
European Community ..................................................................................................................................... 6
Kruslin v France 12 EHRR 547 1990. .................................................................................................... 7
Chappel v United Kingdom 12 EHRR 1 1989. ...................................................................................... 7
Cremieux v France 16 EHRR 357 1993. ................................................................................................ 7
Miailhe v France 16 EHRR 332 1993. ................................................................................................... 7
Funke v France [1993] 1 CMLR 897. .................................................................................................... 7
Huig v France 12 EHRR 528 1990: Telephone tapping......................................................................... 7
Silver v United Kingdom 3 EHRR 475 1980: censorship of prisoner’s correspondence ....................... 7
Bruggemann and Scheuten v Federal Republic of Germany 3 EHRR 244 1977: Restrictions on
obtaining abortions ................................................................................................................................. 8
LASKEY, JAGGARD AND BROWN v. THE UNITED KINGDOM (109/1995/615/703-705)
February 1997: prosecution and conviction for sado-masochistic practices-- "interference by a public
authority" with right to respect for private life -- National authorities entitled to consider interference
"necessary in a democratic society" for protection of health .................................................................. 8
Z v. FINLAND (9/1996/627/811) 25 February 1997: orders requiring doctors and psychiatrist to give
evidence, seizure of medical records and their inclusion in investigation file without the patient's prior
consent in criminal proceedings concerning her husband, limitation on the duration of the
confidentiality of the medical data concerned and publication of her identity and HIV infection in a
court judgment .......................................................................................................................................13
HALFORD v. THE UNITED KINGDOM (73/1996/692/884) 25 June 1997: - interception of
telephone calls made on internal telecommunications system operated by police and on public network
- lack of regulation by domestic law......................................................................................................16
ANNE-MARIE ANDERSSON v. SWEDEN (72/1996/691/883) 27 August 1997: - lack of
possibility for a patient, prior to the communication of personal and confidential medical data by
medical authority to a social services authority, to challenge the measure before a court ...................19
M.S. v. SWEDEN (74/1996/693/885) 27 August 1997: communication, without the patient's consent,
of personal and confidential medical data by one public authority to another .....................................22
CAMENZIND v. SWITZERLAND (136/1996/755/954) 16 December 1997: search of residential
premises carried out in connection with administrative criminal law proceedings -- Interference "in
accordance with the law" and pursued aim consistent with Convention: "prevention of disorder or
crime". ...................................................................................................................................................28
KOPP v. SWITZERLAND (13/1997/797/1000) 25 March 1998: – monitoring of a law firm’s
telephone lines on orders of the Federal Public Prosecutor -- law did not clearly state how, under
what conditions and by whom distinction was to be drawn between matters specifically connected
with a lawyer’s work under instructions from a party to proceedings and those relating to activity other
than that of counsel ................................................................................................................................32
VALENZUELA CONTRERAS v. SPAIN (58/1997/842/1048) 30 July 1998: monitoring of
telephone line in connection with criminal proceedings against subscriber -- Foreseeability of law:
telephone taps constituted serious interference with right to respect for private life and correspondence
– had to be based on an especially precise "law". ..................................................................................36
ENGLAND ....................................................................................................................................................37
Three elements of defamation: ..............................................................................................................37
Defenses: ...............................................................................................................................................37
Criminal Libel: ......................................................................................................................................37
Protection of privacy: ............................................................................................................................38
Trespass: ................................................................................................................................................38
Data Protection Act 1984: .....................................................................................................................38
Breach of Confidence: ...........................................................................................................................38
Argyll v Argyll [1967] Ch 302. .............................................................................................................38
Canada ...........................................................................................................................................................38
R. v. Caslake [1998] 1 S.C.R. 51: -- Search and seizure -- Inventory search of accused's car
following lawful arrest -- Search conducted pursuant to police policy and without warrant or
permission -- Admissibility of evidence .................................................................................................38
M. (A.) v. Ryan [1997] 1 S.C.R. 157: -- Disclosure -- Counselling records -- Victim bringing civil
action for damage allegedly caused by defendant's sexual conduct -- Defendant seeking production of
psychiatrist's counselling records and notes -- Whether documents privileged ....................................40
R. v. Feeney [1997] 2 S.C.R. 13: Search and seizure -- Police looking for suspect in serious crime -Police entering home uninvited and without warrant -- Whether accused's privacy interest violated -Canadian Charter of Rights and Freedoms, s. 8. ...................................................................................48
Constitutional law -- Charter of Rights -- Admissibility of evidence .....................................................48
Dagg v. Canada (Minister of Finance) [1997] 2 S.C.R. 403: Access to information -- Privacy -Personal information -- Request made for sign-in logs of government department -- Personal
identifying features deleted from information -- Whether information should be disclosed -- Whether
part of information can be withheld because "personal information" ...................................................54
R. v. Belnavis [1997] 3 S.C.R. 341: Unreasonable search and seizure -- Car stopped for speeding -Officer looking for car's documentation and questioning passenger -- Stolen goods contained in
garbage bags found in car -- Driver and passenger charged with possession of stolen goods -Whether the driver and the passenger had reasonable expectation of privacy engaged by the search
and seizure -- If so, whether the evidence should be excluded ..............................................................57
Godbout v. Longueuil (City) [1997] 3 S.C.R. 844: Right to privacy -- Residence requirement -Municipality adopting resolution requiring all new permanent employees to reside within its
territorial limits -- Whether right to choose where to establish one's home falls within scope of right to
privacy -- Whether residence requirement infringes employee's right to privacy -- If so, whether
infringement justifiable ..........................................................................................................................61
R. v. Evans [1996] 1 S.C.R. 8: Search and seizure -- Admissibility of evidence seized -- Police sniffing
marijuana at house door -- Arrests made, premises secured, and search warrant for premises then
obtained and executed -- Marijuana plants seized -- Whether or not "sniffing" for marijuana at house
door a "search" under s. 8 of Charter -- If so, whether or not that search "reasonable" .....................65
R. v. Dewald [1996] 1 S.C.R. 68: Unreasonable search and seizure -- Bringing administration of
justice into disrepute -- Admissibility -- Demand for breath sample not made in accordance with
Criminal Code and infringing appellant's Charter rights -- Admission of evidence obtained as result of
infringement not bringing administration of justice into disrepute .......................................................67
R. v. Bernshaw [1995] 1 S.C.R. 254: -- Demand for breath sample -- Roadside screening test -Police officer authorized to demand that driver provide breath sample "forthwith" for screening test -Whether "fail" result per se provides reasonable and probable grounds to demand breathalyzer -Whether officer must ascertain when driver consumed last drink or wait at least 15 minutes before
administering screening test -- Whether "forthwith" means immediately or whether it may encompass
15-minute delay .....................................................................................................................................68
R. v. Edwards [1996] 1 S.C.R. 128: Unreasonable search and seizure -- Evidence -- Admissibility -Search of apartment of third party -- Real evidence seized and admitted -- Whether or not accused can
challenge admission of evidence obtained as a result of a search of third party's premises .................70
R. v. Clement [1996] 2 S.C.R. 289: -- Police searching accused's car -- Evidence supporting trial
judge's finding that accused gave his consent to the search freely and voluntarily -- No infringement of
accused's right to be secure against unreasonable search and seizure ...................................................71
R. v. Goldhart [1996] 2 S.C.R. 463: Admissibility of evidence --Accused arrested on premises
searched pursuant to invalid search warrant --Marijuana seized but excluded from evidence -- Person
arrested with accused pleading guilty in prior trial and testifying for Crown at accused's trial -Whether witness' evidence obtained in a manner that breached the Charter -- If so, whether its
2
admission would bring the administration of justice into disrepute -- Whether a temporal connection
existed between the witness' evidence and the Charter breach and whether any causal connection with
the Charter breach was too remote ........................................................................................................72
R. v. Knox [1996] 3 S.C.R. 1996: -- Blood test -- Consent -- Demand for blood test made of suspected
impaired driver -- Standard demand not mentioning requirements that assurances be made that the
blood samples will only be taken by a qualified medical practitioner and that taking the samples
would neither harm the suspect's health nor endanger the suspect's life -- Whether the driver's consent
was an essential element to be proved by the Crown in obtaining the driver's blood sample ...............75
R. v. Jacques [1996] 3 S.C.R. 312: Police officer stopping and searching appellants' truck several
kilometres from Canada-U.S. border after receiving report that a vehicle had crossed at uncontrolled
point of entry -- Report containing no description of vehicle or passengers -- Customs Act authorizing
stop and search of vehicle where officer suspects on reasonable grounds that vehicle is or might be
involved in smuggling -- Whether officer had reasonable grounds to stop appellants -- Whether
appellants subjected to unreasonable search or seizure .......................................................................77
R. v. Keshane [1996] 3 S.C.R. 413: Admissibility of evidence -- Accused charged with possession of
marijuana for purpose of trafficking – Trial judge finding that warrantless search of accused's car
violated s. 8 of Canadian Charter of Rights and Freedoms -- Trial judge excluding marijuana found by
police from evidence -- Court of Appeal correct in directing that evidence be admitted ......................79
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN .....................................79
R. v. Garofoli [1990] 2 S.C.R. 1421: Interception of private communications -- Judge failing to
include minimization clause in wiretap authorizations -- Whether authorizations violate s. 8 of
Canadian Charter -- Grounds for challenging authorizations and appropriate remedies -- Protection of
identity of informers -- Admissibility of evidence ...............................................................................80
R. v. Silveira [1995] 2 S.C.R. 297: Unreasonable search and seizure -- Exigent circumstances -Admissibility of real evidence if search unlawful -- Police entering house to protect real evidence
while waiting for issuance of search warrant -- Search conducted and evidence seized only after
warrant issued -- Whether or not search and seizure contrary to s. 8 of Charter -- If so, whether
admission of evidence would bring administration of justice into disrepute .........................................84
R. v. Colarusso [1994] 1 S.C.R. 20: Unreasonable search and seizure -- Coroners Act permitting
warrantless seizures by coroners -- Validity of legislation -- Whether investigatory provisions of
Coroners Act intra vires province .........................................................................................................90
Comité paritaire de l'industrie de la chemise v. Potash; Comité paritaire de l'industrie de la
chemise v. Sélection Milton [1994] 2 S.C.R. 406: Inspections -- Powers of inspection of an agency
responsible for implementing a government decree in a regulated industrial sector -- Whether these
powers of inspection, conferred by a provincial statute, infringe s. 8 of the Canadian Charter ...........94
Kourtessis v. M.N.R. [1993] 2 S.C.R. 53: Income tax -- Enforcement -- Search and seizure -Warrant authorizing search and seizure quashed but material seized not returned --Second warrant
issued with respect to retained material but subject to right to challenge -- Appellants challenging
warrant by bringing application for declaration that search warrant and enabling legislation
unconstitutional and for order quashing warrant -- Application dismissed -- Court of Appeal finding
no right to appeal because search and seizure effected under federal criminal law power and no right
to appeal existing in Criminal Code or Income Tax Act -- Whether or not appeal could be effected
under provincial procedures -- Whether or not search and seizure unreasonable contrary to s. 8 of
Charter ..................................................................................................................................................98
R. v. Wiley [1993] 3 S.C.R. 263: Cultivation of marihuana -- Police conducting perimeter search of
accused's property without a warrant -- Whether warrantless perimeter search violated s. 8 of Canadian
Charter -- Whether evidence should be excluded ................................................................................104
Constitutional law -- Charter of Rights -- Admissibility of evidence ...................................................104
R. v. Wise [1992] 1 S.C.R. 527: -- Electronic surveillance -- Tracking devices -- Police installing
unauthorized electronic tracking device in accused's car to monitor his whereabouts -- Whether use of
device infringed accused's right to be secure against unreasonable search and seizure -- whether
admission of evidence so obtained would bring administration of justice into disrepute ...................105
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO ..................................................105
R. v. Duarte [1990] 1 S.C.R. 30: -- Evidence obtained by electronic surveillance conducted without
authorization -- Conversation recorded with consent of a party to it -- Recording of conversation
3
entered into evidence -- Evidence obtained as result of breach of Charter inadmissible if
administration of justice would be brought into disrepute -- Evidence obtained as result of
unintentional Charter breach ...............................................................................................................108
R v McKinlay Transport Limited [1990] 1 S.C.R. 627: Income tax audit -- Demand for information
or documents under s. 231(3) of the Income Tax Act -- Whether a demand for information or
documents under s. 231(3) constitutes a seizure -- If so, whether seizure under s. 231(3) unreasonable
.............................................................................................................................................................111
R. v. Ladouceur [1990] 1 S.C.R. 1257: Random routine traffic checks -- Checks authorized by statute
-- Driver stopped for no apparent reason -- Driver found to be driving while licence under suspension
and convicted -- Whether or not random routine traffic checks violating the Charter ........................113
R. v. Thompson [1990] 2 S.C.R. 1111: Interception of private communications -- Validity of
authorization -- Sufficiency of description -- Places of interception: public pay phones and residential
premises -- Authorizations permitting private communications to be intercepted at all places resorted
to by named persons within the province -- Whether authorizations valid -- Surreptitious entry into
residential premises to install intercepting devices ---- No conditions included in authorizations to
protect public interest -- Whether authorizations violate s. 8 of the Canadian Charter .......................115
R. v. Debot [1989] 2 S.C.R. 1140: Reasonableness of search -- Right to counsel -- Admissibility of
evidence if obtained in circumstances in violation of Charter rights -- Appellant frisked in warrantless
drug search -- Search ordered following tip from reliable informant -- Drugs found and appellant
arrested -- Appellant informed of his Charter rights, including right to counsel, on arrest -- Whether or
not search reasonable -- Whether or not right to counsel infringed -- Whether or not real evidence
obtained in search should be excluded from evidence.........................................................................121
Privacy
14. Everyone has the right to privacy, which includes the right not to have a. their person or home searched;
b. their property searched;
c. their possessions seized; or
d. the privacy of their communications infringed.
Australia
RIGHT TO PRIVACY
There is no general legal right to privacy in Anglo-Australian law. This was confirmed in
Australian High Court decision of Victoria Park Racing and Recreation Grounds Co Ltd v.
Taylor1 in which the court ruled that the common law did not recognise any general right to
privacy nor any tort in violation of privacy.2 In 1988 this situation changed somewhat when the
Commonwealth Government enacted the Privacy Act 1988 (Cth).3 The Commonwealth Privacy
Act deals primarily with information privacy (ie the handling of personal information). The
Privacy Amendment Act 1990 (Cth) addresses the activities of credit reporting agencies and credit
providers.4
1
(1937) 58 CLR 479.
(1937) 58 CLR 479, 496.
3
The only State to have enacted specific privacy legislation is New South Wales.
4
The only State to have enacted specific privacy legislation is New South Wales.
2
4
The Privacy Act provides protection through regulating the handling of personal
information by federal government agencies. This is done by establishing rules of conduct
(Information Privacy Principles or ‘IPPs ) for the collection, retention, access to, correction, use
and disclosure of personal information. These principles apply to Commonwealth departments
and agencies. The Act also provides protection for the use of tax file numbers and consumer
credit information.
Under the Act the office of Privacy Commissioner was established within the Human
Rights and Equal Opportunity Commission. The Commissioner is empowered to take privacy
protection measures in relation to Commonwealth departments and agencies and tax file number
users. An individual alleging a breach of privacy can complain to the Privacy Commissioner,
who is authorized to investigate and conciliate complaints. The Commissioner is empowered
make determinations, which includes making a determination that an agency has breached an IPP
and should pay damages to an aggrieved party.
The Commissioner can also make a determination that the ‘public interest in compliance
with the IPPs is outweighed by the public interest in the continuation of an act of practice that is
inconsistent with the IPPs .5 Such an act would not be treated as an interference with privacy.
The Commissioner is similarly empowered to investigate and conciliate privacy complaints
concerning misuse of tax file numbers in the public and private sectors. If conciliation is
unsuccessful the Commissioner can make determinations which are enforceable in the Federal
Court by the Commissioner or the complainant.
The Privacy Act also extended the law of confidentiality through amending the Freedom
of Information Act 1982 (Cth) (FOI Act). It is now required, where reasonably practicable, that a
person whose affairs are dealt with in a document be consulted before that document is disclosed
under the FOI Act. There are some additional information privacy provisions in other
Commonwealth laws which relate to specific information or practices such as data matching,
spent criminal convictions and the use of Medicare information.6 Other privacy issues such as
video surveillance and telephone interception and physical intrusion into private spaces are not
specifically covered under Commonwealth privacy legislation, although there may be remedies
against intrusions upon privacy in this manner covered by other more general laws.
Development of a Right to Privacy in the Common Law?
There have been cases in recent years which indicate that courts might be ‘sympathetic to
acknowledging a right to privacy in certain situations’.7
5
The Parliament of the Commonwealth of Australia, Privacy Bill 1988 - Explanatory Memorandum
(1988).
6
See the Australian Security Intelligence Organisation Act 1979, Freedom of Information Act 1982,
Archives Act 1983, Income Tax Assessment Act 1936. Medicare is Australia s national health care
system.
7
Hughes, Outsourcing and Client Rights, 70 Law Institute Journal 28 (1996).
5
Johns v. Australian Securities Commission [1994] 116 ALR 567
- information collected for one purpose may not be used for another purpose
Bradley v. Wingnut Films Limited [1993] 1 NZLR 415
- a tort of invasion of privacy does exist in certain circumstances
Malone v Metropolitan Police Commissioner [1979] Ch 344
- a right of ‘telephonic privacy’ in limited circumstances
Breach of Confidence
The equitable action for breach of confidence provides a remedy in respect of the
unauthorized use or disclosure of personal information. There is debate about the scope of this
doctrine insofar as privacy interests are concerned. Certainly it applies to private individuals who
impart information in confidence. It is limited, however, by its possible inapplicably where
‘information is accessed without authority (either surreptitiously or accidentally) by a third party
who has no confidential relationship with the ‘owner’ of the information.
Bibliography
Hughes, An Overview of Data Protection in Australia, 18 Melbourne University Law Review 83
(1991).
Hughes, Outsourcing and Client Rights, 70 Law Institute Journal 28 (1996).
The Parliament of the Commonwealth of Australia, Privacy Bill 1988 - Explanatory
Memorandum (1988).
Richardson, Breach of Confidence, Surreptitiously or Accidentally Obtained Information and
Privacy: Theory Versus Law, 19 Melbourne University Law Review 671 (1994).
European Community
Article 8
1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such
as is in accordance with the law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the protection of the rights and
freedoms of others.
6
EUROPEAN COURT OF HUMAN RIGHTS 2
Photocopied cases:
Kruslin v France 12 EHRR 547 1990.
Private life, interference with: Telephone Tapping.
Chappel v United Kingdom 12 EHRR 1 1989.
Anton Pillar Order: Private life, interference, necessity, proportionality.
Cremieux v France 16 EHRR 357 1993.
Search and Seizure: exhaustion of domestic remedy; private life, home, correspondence,
legitimate aim.
Miailhe v France 16 EHRR 332 1993.
Search and Seizure: exhaustion of domestic remedy; private life, home, correspondence,
legitimate aim.
Funke v France [1993] 1 CMLR 897.
Search and Seizure. Customs. Free movement of capital.
Huig v France 12 EHRR 528 1990: Telephone tapping
Telephone tapping: private life: tapping in accordance with the law: meaning of ‘law’ in
continental system: forseeability. Interference with right to respect for correspondence
and private life. Safeguards against abuses. Conditions under which order could be made
not defined. No limit on duration of tapping. No procedure drawn up for the submitting
of reports. No precautions specified in the handling and destruction of records. French
law did not provide applicants with the minimum degree of protection which citizens
were entitled under the rule of law in a democratic society.
Silver v United Kingdom 3 EHRR 475 1980: censorship of prisoner’s
correspondence
European Commission of Human Rights: censorship of prisoner’s correspondence:
respect for private correspondence: letters containing material intended for publication
does not preclude the letters from enjoying the benefit of the protection guaranteed by Art
8(1). Respect for correspondence: exceptions allowed by law and necessary in a
democratic society (Art 8(2)). In order to justify such a violation  must show that the
7
interference is in accordance with the law; this in turn means that (a) the relevant legal
rules must be accessible and (b) the prisoners must be able to foresee the consequences of
their actions. Second prerequisite: the interference must be necessary in a democratic
society for the purpose of one or more the exceptions specified in art 8(2) eg for the
prevention of disorder or crime. In considering what is necessary in such a context, a
balance must be struck between the interests of public order and security on the one hand,
and the rehabilitation of prisoners on the other; in striking that balance, regard must be
paid to whether the censorship of the prisoner’s correspondence was compatible with the
purposes envisaged by the exceptions. Prohibitions in the standing orders of material in
letters attempting to stimulate public agitation; circumvent prison regulations; containing
threats of violence; discussing either crime  are reasonably forseeable from the terms of
the rule and hence are imposed in accordance with the law; further they are restrictions
which are in principle justifiable as necessary to prevent disorder; and for the protection
of others.
Bruggemann and Scheuten v Federal Republic of Germany 3 EHRR 244 1977:
Restrictions on obtaining abortions
European Commission of Human Rights: Right to respect for private life (Art 8).
Abortion. Restrictions on obtaining abortions. Not every restriction on the termination of
an unwanted pregnancy constituted an interference with the right of respect for the
private life of the mother. Article 8(1) of the Convention could not therefore be
interpreted as meaning that pregnancy and its termination were, in principle, solely a
matter of the private life of the mother. The application concerns the criminal law on the
termination of pregnancy in the Federal Republic of Germany. The 15th Criminal Law
Reform Act 1976 maintained the principle that abortion is a criminal offence but provides
that in specific situations of distress, an abortion performed by a doctor with the woman’s
consent after consultation is not punishable. Applicants submit that the Act interfered
with their right to private life under Art 8(1) and that this interference was not justified by
on any of the grounds enumerated in para (2) of that article. No breach of Art 8.
The above European cases require elaboration
LASKEY, JAGGARD AND BROWN v. THE UNITED KINGDOM
(109/1995/615/703-705) February 1997: prosecution and conviction for sadomasochistic practices-- "interference by a public authority" with right to respect
for private life -- National authorities entitled to consider interference "necessary
in a democratic society" for protection of health
United Kingdom - prosecution and conviction for sado-masochistic practices (sections 20
and 47 of the Offences Against the Persons Act 1861)
Article 8 of the Convention
Common ground before Court: criminal proceedings against applicants constituted
"interference by a public authority" with right to respect for private life, carried out "in
8
accordance with the law" and in pursuance of legitimate aim ("protection of health or
morals"). Only issue: whether interference "necessary in a democratic society".
"Necessary in a democratic society"
State unquestionably entitled to regulate through criminal law the infliction of physical
harm - determination of tolerable level of harm where victim consents primarily a matter
for State concerned.
Court not persuaded that applicants' behaviour belonged to private morality and was
excluded from State's intervention - evident from facts that activities involved significant
degree of injury and wounding - State authorities were entitled to consider not only actual
but also potential harm inherent in activities.
No evidence to support allegation of authorities' bias against homosexuals - majority in
House of Lords based decision on extreme nature of practices.
Accordingly, reasons given by national authorities for interference are relevant and
sufficient.
Given degree of organisation, limited number of charges selected for prosecution, and
reduced sentences imposed on appeal - interference not disproportionate.
National authorities entitled to consider interference "necessary in a democratic society"
for protection of health.
Conclusion: no violation (unanimously).
I. The circumstances of the case
7. Mr Laskey, Mr Jaggard and Mr Brown, all British citizens, were born in 1943, 1947
and 1935 respectively. Mr Laskey died on 14 May 1996.
8. In 1987 in the course of routine investigations into other matters, the police came into
possession of a number of video films which were made during sado-masochistic
encounters involving the applicants and as many as 44 other homosexual men. As a result
the applicants, with several other men, were charged with a series of offences, including
assault and wounding, relating to sado-masochistic activities that had taken place over a
ten-year period. One of the charges involved a defendant who was not yet 21 years old the age of consent to male homosexual practices at the time. Although the instances of
assault were very numerous, the prosecution limited the counts to a small number of
exemplary charges.
The acts consisted in the main of maltreatment of the genitalia (with, for example, hot
wax, sandpaper, fish hooks and needles) and ritualistic beatings either with the assailant's
bare hands or a variety of implements, including stinging nettles, spiked belts and a cato'-nine tails. There were instances of branding and infliction of injuries which resulted in
the flow of blood and which left scarring.
These activities were consensual and were conducted in private for no apparent purpose
other than the achievement of sexual gratification. The infliction of pain was subject to
certain rules including the provision of a code word to be used by any "victim" to stop an
"assault", and did not lead to any instances of infection, permanent injury or the need for
medical attention.
9. The activities took place at a number of locations, including rooms equipped as torture
chambers. Video cameras were used to record events and the tapes copied and distributed
amongst members of the group. The prosecution was largely based on the contents of
9
those video tapes. There was no suggestion that the tapes had been sold or used other
than by members of the group.
10. The applicants pleaded guilty to the assault charges after the trial judge ruled that they
could not rely on the consent of the "victims" as an answer to the prosecution case.
11. On 19 December 1990, the defendants were convicted and sentenced to terms of
imprisonment. On passing sentence, the trial judge commented: "the unlawful conduct
now before the court would be dealt with equally in the prosecution of heterosexuals or
bisexuals if carried out by them. The homosexuality of the defendants is only the
background against which the case must be viewed."
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
35. The applicants contended that their prosecution and convictions for assault and
wounding in the course of consensual sado-masochistic activities between adults was in
breach of Article 8 of the Convention, which provides:
"1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others."
It was common ground among those appearing before the Court that the criminal
proceedings against the applicants which resulted in their conviction constituted an
"interference by a public authority" with the applicants' right to respect for their private
life. It was similarly undisputed that the interference had been "in accordance with the
law". Furthermore, the Commission and the applicants accepted the Government's
assertion that the interference pursued the legitimate aim of the "protection of health or
morals", within the meaning of the second paragraph of Article 8.
36. The Court observes that not every sexual activity carried out behind closed doors
necessarily falls within the scope of Article 8. In the present case, the applicants were
involved in consensual sado-masochistic activities for purposes of sexual gratification.
There can be no doubt that sexual orientation and activity concern an intimate aspect of
private life (see, mutatis mutandis, the Dudgeon v. the United Kingdom judgment of 22
October 1981, Series A no. 45, p. 21, § 52). However, a considerable number of people
were involved in the activities in question which included, inter alia, the recruitment of
new "members", the provision of several specially-equipped "chambers", and the
shooting of many video-tapes which were distributed among the "members" (see
paragraphs 8 and 9 above). It may thus be open to question whether the sexual activities
of the applicants fell entirely within the notion of "private life" in the particular
circumstances of the case.
However, since this point has not been disputed by those appearing before it, the Court
sees no reason to examine it of its own motion in the present case. Assuming, therefore,
that the prosecution and conviction of the applicants amounted to an interference with
10
their private life, the question arises whether such an interference was "necessary in a
democratic society" within the meaning of the second paragraph of Article 8.
"Necessary in a democratic society"
37. The applicants maintained that the interference at issue could not be regarded as
"necessary in a democratic society". This submission was contested by the Government
and by a majority of the Commission.
38. In support of their submission, the applicants alleged that all those involved in the
sado-masochistic encounters were willing adult participants; that participation in the acts
complained of was carefully restricted and controlled and was limited to persons with
like-minded sado-masochistic proclivities; that the acts were not witnessed by the public
at large and that there was no danger or likelihood that they would ever be so witnessed;
that no serious or permanent injury had been sustained, no infection had been caused to
the wounds, and that no medical treatment had been required. Furthermore, no complaint
was ever made to the police - who learnt about the applicants' activities by chance (see
paragraph 8 above).
The potential for severe injury or for moral corruption was regarded by the applicants as
a matter of speculation. To the extent that issues of public morality had arisen - with
reference to Mr Laskey's conviction for keeping a disorderly house and for the possession
of an indecent photograph of a child (see paragraph 11 above) - these had been dealt with
under the relevant sexual offences provisions and appropriately punished. In any event,
such issues fell outside the scope of the case as presented before the Court.
39. The applicants submitted that their case should be viewed as one involving matters of
sexual expression, rather than violence. With due regard to this consideration, the line
beyond which consent is no defence to physical injury should only be drawn at the level
of intentional or reckless causing of serious disabling injury.
40. For the Government, the State was entitled to punish acts of violence, such as those
for which the applicants were convicted, that could not be considered of a trifling or
transient nature, irrespective of the consent of the victim. In fact, in the present case,
some of these acts could well be compared to "genital torture" and a Contracting State
could not be said to have an obligation to tolerate acts of torture because they are
committed in the context of a consenting sexual relationship. The State was moreover
entitled to prohibit activities because of their potential danger.
The Government further contended that the criminal law should seek to deter certain
forms of behaviour on public health grounds but also for broader moral reasons. In this
respect, acts of torture - such as those at issue in the present case - may be banned also on
the ground that they undermine the respect which human beings should confer upon each
other. In any event, the whole issue of the role of consent in the criminal law is of great
complexity and the Contracting States should enjoy a wide margin of appreciation to
consider all the public policy options.
41. The Commission noted that the injuries that were or could be caused by the
applicants' activities were of a significant nature and degree, and that the conduct in
question was, on any view, of an extreme character. The State authorities therefore acted
within their margin of appreciation in order to protect its citizens from real risk of serious
physical harm or injury.
42. According to the Court's established case-law, the notion of necessity implies that the
interference corresponds to a pressing social need and, in particular, that it is
11
proportionate to the legitimate aim pursued; in determining whether an interference is
"necessary in a democratic society", the Court will take into account that a margin of
appreciation is left to the national authorities (see, inter alia, the Olsson v. Sweden (no.
1) judgment of 24 March 1988, Series A no. 130, pp. 31-32, § 67), whose decision
remains subject to review by the Court for conformity with the requirements of the
Convention.
The scope of this margin of appreciation is not identical in each case but will vary
according to the context. Relevant factors include the nature of the Convention right in
issue, its importance for the individual and the nature of the activities concerned (see the
Buckley v. the United Kingdom judgment of 25 September 1996, Reports of Judgments
and Decisions 1996-IV, pp.1291-1292, § 74).
43. The Court considers that one of the roles which the State is unquestionably entitled to
undertake is to seek to regulate, through the operation of the criminal law, activities
which involve the infliction of physical harm. This is so whether the activities in question
occur in the course of sexual conduct or otherwise.
44. The determination of the level of harm that should be tolerated by the law in
situations where the victim consents is in the first instance a matter for the State
concerned since what is at stake is related, on the one hand, to public health
considerations and to the general deterrent effect of the criminal law, and, on the other, to
the personal autonomy of the individual.
45. The applicants have contended that, in the circumstances of the case, the behaviour in
question formed part of private morality which is not the State's business to regulate. In
their submission the matters for which they were prosecuted and convicted concerned
only private sexual behaviour.
The Court is not persuaded by this submission. It is evident from the facts established by
the national courts that the applicants' sado-masochistic activities involved a significant
degree of injury or wounding which could not be characterised as trifling or transient.
This, in itself, suffices to distinguish the present case from those applications which have
previously been examined by the Court concerning consensual homosexual behaviour in
private between adults where no such feature was present (see the Dudgeon v. the United
Kingdom judgment cited above, the Norris v. Ireland judgment of 26 October 1988,
Series A no. 142, and the Modinos v. Cyprus judgment of 22 April 1993, Series A no.
259).
46. Nor does the Court accept the applicants' submission that no prosecution should have
been brought against them since their injuries were not severe and since no medical
treatment had been required.
In deciding whether or not to prosecute, the State authorities were entitled to have regard
not only to the actual seriousness of the harm caused - which as noted above was
considered to be significant - but also, as stated by Lord Jauncey of Tullichettle (see
paragraph 21 above), to the potential for harm inherent in the acts in question. In this
respect it is recalled that the activities were considered by Lord Templeman to be
"unpredictably dangerous" (see paragraph 20 above).
47. The applicants have further submitted that they were singled out partly because of the
authorities' bias against homosexuals. They referred to the recent judgment in the Wilson
case (see paragraph 30 above), where, in their view, similar behaviour in the context of a
heterosexual couple was not considered to deserve criminal punishment.
12
The Court finds no evidence in support of the applicants' allegations in either the conduct
of the proceedings against them or the judgment of the House of Lords. In this respect it
recalls the remark of the trial judge when passing sentence that "the unlawful conduct
now before the court would be dealt with equally in the prosecution of heterosexuals or
bisexuals if carried out by them" (see paragraph 11 above).
Moreover, it is clear from the judgment of the House of Lords that the opinions of the
majority were based on the extreme nature of the practices involved and not the sexual
proclivities of the applicants (see paragraphs 21 and 21 above).
In any event, like the Court of Appeal, the Court does not consider that the facts in the
Wilson case were at all comparable in seriousness to those in the present case (see
paragraph 30 above).
48. Accordingly, the Court considers that the reasons given by the national authorities for
the measures taken in respect of the applicants were relevant and sufficient for the
purposes of Article 8 § 2.
49. It remains to be ascertained whether these measures were proportionate to the
legitimate aim or aims pursued.
The Court notes that the charges of assault were numerous and referred to illegal
activities which had taken place over more than ten years. However, only a few charges
were selected for inclusion in the prosecution case. It further notes that, in recognition of
the fact that the applicants did not appreciate their actions to be criminal, reduced
sentences were imposed on appeal (see paragraphs 15-17 above). In these circumstances,
bearing in mind the degree of organisation involved in the offences, the measures taken
against the applicants cannot be regarded as disproportionate.
50. In sum, the Court finds that the national authorities were entitled to consider that the
prosecution and conviction of the applicants were necessary in a democratic society for
the protection of health within the meaning of Article 8 § 2 of the Convention.
51. In view of this conclusion the Court, like the Commission, does not find it necessary
to determine whether the interference with the applicants' right to respect for private life
could also be justified on the ground of the protection of morals. This finding, however,
should not be understood as calling into question the prerogative of the State on moral
grounds to seek to deter acts of the kind in question.
Z v. FINLAND (9/1996/627/811) 25 February 1997: orders requiring doctors and
psychiatrist to give evidence, seizure of medical records and their inclusion in
investigation file without the patient's prior consent in criminal proceedings
concerning her husband, limitation on the duration of the confidentiality of the
medical data concerned and publication of her identity and HIV infection in a
court judgment
9. The applicant is a Finnish national, resident in Finland, and was at the time of the
events which gave rise to her complaints under the Convention married to X, who was
not Finnish. They divorced on 22 September 1995. They are both infected with the
human immunodeficiency virus (HIV).
10. On 10 March 1992 the Helsinki City Court (raastuvanoikeus, rådstuvurätten)
convicted X and sentenced him to a suspended term of imprisonment for rape on O. on
13
12 December 1991. The City Court held the trial in camera and ordered that the
documents submitted in the case remain confidential for a certain period.
11. On 19 March 1992 X was informed of the results of a blood test performed on 6
March 1992, indicating that he was HIV positive.
Finland - orders requiring doctors and psychiatrist to give evidence, seizure of medical
records and their inclusion in investigation file without the patient's prior consent in
criminal proceedings concerning her husband, limitation on the duration of the
confidentiality of the medical data concerned and publication of her identity and HIV
infection in a court judgment given in those proceedings (chapter 17, Article 23 § 3, of
the Code of Judicial Procedure; chapter 4, section 2 (2), of the Coercive Means of
Criminal Investigation Act 1987; and section 9 of the Publicity of Court Proceedings Act
1984)
I. Article 8 of the Convention
A. Scope of the issues before the Court
Not established that there had been a leak of confidential medical data concerning the
applicant for which the respondent State could be held responsible under Article 8 - nor
did the Court have jurisdiction to entertain the applicant's allegation that she had been
subjected to discriminatory treatment - it would therefore confine its examination to the
other matters complained of.
B. Whether there was an interference with the applicant's right to respect for her
private and family life
The various measures complained of constituted interferences with the applicant's right to
respect for her private and family life.
C. Whether the interferences were justified
1. In accordance with the law
Nothing to suggest that the contested measures did not fulfil this requirement.
2. Legitimate aim
Investigative measures: "prevention of ... crime" and "protection of the rights and
freedoms of others".
Ten-year limitation on the confidentiality of the medical data: protection of the rights and
freedoms of others.
Publication of applicant's name and health condition in Court of Appeal judgment:
doubtful that this pursued a legitimate aim but not necessary to decide the issue in view
of conclusion below.
3. Necessary in a democratic society
Statement of general principles concerning importance of respecting confidentiality of
health data - these considerations were especially valid as regards protection of
confidentiality of information about a person's HIV infection, disclosure of which not
compatible with Article 8 unless justified by an overriding requirement in the public
interest - State measures compelling communication or disclosure of such information
without consent of patient called for most careful scrutiny on the part of the Court, as did
the safeguards designed to secure effective protection - at the same time not for Court to
substitute its views for those of national authorities as to relevance of evidence used in
judicial proceedings - these also enjoyed a margin of appreciation in striking fair balance
14
between interest of publicity of court proceedings and interests in confidentiality of
personal data.
Against this background, Court examined each measure in turn, whilst noting at the
outset that the decision-making process did not give rise to misgivings and that remedies
were apparently available for challenging the seizure and for having the limitation on the
confidentiality order quashed.
(a) Orders requiring the applicant's doctors and psychiatrist to give evidence: measures
were taken in context of the applicant availing herself of right not to give evidence
against her husband, X - object was exclusively to ascertain when X aware of or had
reason to suspect his HIV infection, which was capable of being decisive for whether
guilty of attempted manslaughter in relation to certain sexual offences - no doubt that
national authorities entitled to think that very weighty public interests in favour of
investigation and prosecution of X for attempted manslaughter - the resultant interference
with applicant's Article 8 rights was subjected to important limitations and safeguards
against abuse - no reason to question extent to which doctors required to give evidence especially because proceedings were confidential and highly exceptional, the contested
orders were unlikely to have deterred potential and actual HIV carriers from undergoing
blood tests and seeking medical treatment.
Conclusion: no violation (eight votes to one).
(b) Seizure of the applicant's medical records and their inclusion in the investigation file:
measures were complementary to the above orders, their context and object were the
same and they were based on same weighty public interests - they were subject to similar
limitations and safeguards against abuse - admittedly, unlike those orders, the seizure had
not been authorised by a court but had been ordered by the prosecution - however, this
fact could not in itself give rise to any breach since conditions for seizure were essentially
the same as those for the orders to give evidence, two of which had been given by the
City Court prior to the seizure and the remainder given shortly thereafter - would have
been possible for applicant to challenge seizure before City Court - no reason to doubt
national authorities' assessment that necessary to seize all the material concerned and to
include it in investigation file.
Conclusion: no violation (eight votes to one).
(c) Duration of the order to maintain the medical data confidential: ten-year limitation on
confidentiality order did not correspond to wishes or interests of litigants in the
proceedings -production of medical information and material in issue without applicant's
consent meant that she had already been subjected to serious interference with her private
and family life - further interference which she would suffer if the data were to be made
accessible to the public after ten years, in 2002, was not supported by overriding reasons.
Conclusion: violation in the event of order to make the material accessible to the
public in 2002 being implemented (unanimously).
(d) Disclosure of the applicant's identity and HIV infection in the Court of Appeal's
judgment: not supported by any cogent reasons.
Conclusion: violation (unanimously).
15
HALFORD v. THE UNITED KINGDOM (73/1996/692/884) 25 June 1997: interception of telephone calls made on internal telecommunications system
operated by police and on public network - lack of regulation by domestic law
United Kingdom - interception of telephone calls made on internal telecommunications
system operated by police and on public network - lack of regulation by domestic law
(Interception of Communications Act 1985)
I. Article 8 of the Convention
A. Office telephones
1. Applicability
Telephone calls made from business premises may be covered by notions of "private life"
and "correspondence" - applicant had reasonable expectation of privacy.
Conclusion: Article 8 applicable (unanimously).
2. Existence of interference
Reasonable likelihood that calls intercepted by Merseyside Police with primary aim of
gathering material to assist in defence of discrimination proceedings - "interference by
public authority".
3. Whether interference was "in accordance with the law"
To protect against arbitrary interference, domestic law must be sufficiently clear to give
adequate indication of when authorities empowered to resort to secret measures of
surveillance or interception of communications - no regulation by domestic law of
interceptions of calls on internal communications systems operated by public authorities.
Conclusion: violation (unanimously).
B. Home telephone
1. Applicability
Conclusion: applicable (unanimously).
2. Existence of interference
Since complaint (that calls from home telephone were intercepted) concerns specific
measures of interception unauthorised by law, Court must be satisfied there was
reasonable likelihood that some such measure applied to her - evidence insufficient cases of Klass and Others v. Germany and Malone v. the United Kingdom distinguished.
Conclusion: no violation (unanimously).
II. Article 13 of the Convention
A. Office telephones
No effective remedy since no regulation by domestic law of interceptions of telephone
calls on internal communications systems operated by public authorities.
Conclusion: violation (unanimously).
B. Home telephone
Evidence not sufficient to found arguable claim.
Conclusion: no violation (eight votes to one).
ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION
A. The office telephones
1. Applicability of Article 8 to the complaint relating to the office telephones
16
42. The applicant argued and the Commission agreed that conversations made on the
telephones in Ms Halford's office at Merseyside Police Headquarters fell within the scope
of "private life" and "correspondence" in Article 8 § 1, since the Court in its case-law had
adopted a broad construction of these expressions (see, for example, the Klass and Others
v. Germany judgment of 6 September 1978, Series A no. 28, p. 21, § 41, the Huvig v.
France judgment of 24 April 1990, Series A no. 176-B, p. 41, § 8 and p. 52, § 25, the
Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B and the A v.
France judgment of 23 November 1993, Series A no. 277-B).
43. The Government submitted that telephones calls made by Ms Halford from her
workplace fell outside the protection of Article 8, because she could have had no
reasonable expectation of privacy in relation to them. At the hearing before the Court,
Counsel for the Government expressed the view that an employer should in principle,
without the prior knowledge of the employee, be able to monitor calls made by the latter
on telephones provided by the employer.
44. In the Court's view, it is clear from its case-law that telephone calls made from
business premises as well as from the home may be covered by the notions of "private
life" and "correspondence" within the meaning of Article 8 § 1 (see the above-mentioned
Klass and Others judgment, loc. cit., the Malone v. the United Kingdom judgment of 2
August 1985, Series A no. 82, p. 30, § 64, the above-mentioned Huvig judgment, loc. cit.,
and mutatis mutandis the above-mentioned Niemietz judgment, pp. 33-35, §§ 29-33).
45. There is no evidence of any warning having been given to Ms Halford, as a user of
the internal telecommunications system operated at the Merseyside Police Headquarters,
that calls made on that system would be liable to interception. She would, the Court
considers, have had a reasonable expectation of privacy for such calls, which expectation
was moreover reinforced by a number of factors. As Assistant Chief Constable she had
sole use of her office where there were two telephones, one of which was specifically
designated for her private use. Furthermore, she had been given the assurance, in
response to a memorandum, that she could use her office telephones for the purposes of
her sex discrimination case (see paragraph 16 above).
46. For all of the above reasons, the Court concludes that telephone conversations made
by Ms Halford on her office telephones fell within the scope of the notions of "private
life" and "correspondence" and that Article 8 was therefore applicable to this part of the
complaint.
2. Existence of an interference
47. The Government conceded that the applicant had adduced sufficient material to
establish a reasonable likelihood that calls made from her office telephones had been
intercepted. The Commission also considered that an examination of the application
revealed such a reasonable likelihood.
48. The Court agrees. The evidence justifies the conclusion that there was a reasonable
likelihood that calls made by Ms Halford from her office were intercepted by the
Merseyside Police with the primary aim of gathering material to assist in the defence of
the sex discrimination proceedings brought against them (see paragraph 17 above). This
interception constituted an "interference by a public authority", within the meaning of
Article 8 § 2, with the exercise of Ms Halford's right to respect for her private life and
correspondence.
3. Whether the interference was "in accordance with the law"
17
49. Article 8 § 2 further provides that any interference by a public authority with an
individual's right to respect for private life and correspondence must be "in accordance
with the law".
According to the Court's well-established case-law, this expression does not only
necessitate compliance with domestic law, but also relates to the quality of that law,
requiring it to be compatible with the rule of law. In the context of secret measures of
surveillance or interception of communications by public authorities, because of the lack
of public scrutiny and the risk of misuse of power, the domestic law must provide some
protection to the individual against arbitrary interference with Article 8 rights. Thus, the
domestic law must be sufficiently clear in its terms to give citizens an adequate indication
as to the circumstances in and conditions on which public authorities are empowered to
resort to any such secret measures (see the above-mentioned Malone judgment, p. 32, §
67, and, mutatis mutandis, the Leander v. Sweden judgment of 26 March 1987, Series A
no. 116, p. 23, §§ 50-51).
50. In the present case, the Government accepted that if, contrary to their submission, the
Court were to conclude that there had been an interference with the applicant's rights
under Article 8 in relation to her office telephones, such interference was not "in
accordance with the law" since domestic law did not provide any regulation of
interceptions of calls made on telecommunications systems outside the public network.
51. The Court notes that the 1985 Act does not apply to internal communications systems
operated by public authorities, such as that at Merseyside Police Headquarters, and that
there is no other provision in domestic law to regulate interceptions of telephone calls
made on such systems (see paragraphs 36-37 above). It cannot therefore be said that the
interference was "in accordance with the law" for the purposes of Article 8 § 2 of the
Convention, since the domestic law did not provide adequate protection to Ms Halford
against interferences by the police with her right to respect for her private life and
correspondence.
It follows that there has been a violation of Article 8 in relation to the interception of calls
made on Ms Halford's office telephones.
ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
61. Ms Halford further alleged that she had been denied an effective domestic remedy for
her complaints, in violation of Article 13 of the Convention, which states:
"Everyone whose rights and freedoms as set forth in this Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity."
A. The office telephones
62. The applicant, with whom the Commission agreed, contended that there had been a
violation of Article 13 in view of the fact that there was no avenue in domestic law by
which to complain about interceptions of calls made on telecommunications systems
outside the public network.
63. The Government submitted that Article 13 was not applicable in that Ms Halford had
not made out an "arguable claim" to a violation of Articles 8 or 10 of the Convention. In
the alternative, they submitted that no separate issue arose under this provision in relation
to the office telephones.
18
64. The Court recalls that the effect of Article 13 is to require the provision of a remedy
at national level allowing the competent domestic authority both to deal with the
substance of the relevant Convention complaint and to grant appropriate relief, although
Contracting States are afforded some discretion as to the manner in which they conform
to their obligations under this provision (see the Chahal v. the United Kingdom judgment
of 15 November 1996, Reports 1996-VI, pp.1869-70, § 145). However, such a remedy is
only required in respect of grievances which can be regarded as "arguable" in terms of the
Convention.
65. The Court observes that Ms Halford undoubtedly had an "arguable" claim that calls
made from her office telephones were intercepted and that this amounted to a violation of
Article 8 of the Convention (see paragraphs 42-51 above). She was, therefore, entitled to
an effective domestic remedy within the meaning of Article 13. However, as the
Government have conceded in relation to Article 8 of the Convention (see paragraph 50
above), there was no provision in domestic law to regulate interceptions of telephone
calls made on internal communications systems operated by public authorities, such as
the Merseyside Police. The applicant was therefore unable to seek relief at national level
in relation to her complaint concerning her office telephones.
It follows that there has been a violation of Article 13 of the Convention in relation to the
applicant's office telephones.
ANNE-MARIE ANDERSSON v. SWEDEN (72/1996/691/883) 27 August 1997: lack of possibility for a patient, prior to the communication of personal and
confidential medical data by medical authority to a social services authority, to
challenge the measure before a court
Sweden - lack of possibility for a patient, prior to the communication of personal and
confidential medical data by medical authority to a social services authority, to challenge
the measure before a court (Secrecy Act 1980 and Social Services Act 1980)
I. PRELIMINARY OBSERVATIONS
Deceased applicant’s son had sufficient interest to justify continuation of the examination
of the case.
Conclusion: affirmative (unanimously).
Court had no jurisdiction to entertain applicant’s Article 8 complaint.
II. ARTICLE 6 § 1 OF THE CONVENTION
If chief psychiatrist possessed information about the applicant patient to the effect that
intervention by Social Council was necessary for protection of her under age son, the
psychiatrist was under a duty to report immediately to the Council - that duty extended to
all data in her possession potentially relevant to Council's investigation into need to take
protective measures with respect to the son and depended exclusively on relevance of
those data - scope of this obligation and fact that the psychiatrist enjoyed very wide
discretion in assessing what data would be relevant - in this regard, no duty to hear
applicant's views before transmitting the information - a "right" to prevent
communication of such data could not, on arguable grounds, be said to be recognised
under national law.
19
Conclusions: inapplicable (five votes to four) and no violation (eight votes to one).
THE CIRCUMSTANCES OF THE CASE
8. The applicant, Mrs Anne-Marie Andersson was a Swedish citizen. She was born in
1943 and died in 1996 (see paragraph 6 above). She lived in Gothenburg, where she
worked as a taxi driver.
9. At the time of the events in question, Mrs Andersson was divorced and living with her
youngest son, who was born in 1981. From May 1988 onwards, Mrs Andersson was
unable to work as a result both of dental problems which caused her severe pain and
anxiety about a dispute with her landlord.
10. In April 1989 she contacted a psychiatric clinic in Gothenburg in order to receive a
medical certificate which would enable her to claim sickness benefit from the Health
Insurance Office. From 20 August 1991 the applicant was treated by the chief psychiatrist
who drew her attention to the possible detrimental effect her situation might have on her
son and advised her to seek support for him from the children's psychiatric clinic or the
social authorities. Mrs Andersson, however, considered that her son was a normal child
who was not in need of any particular help.
11. In January 1992 the psychiatrist informed Mrs Andersson that since the child's
health might be at risk, she (the psychiatrist) had an obligation under Swedish law
to contact the social authorities (see paragraphs 16-17 below). Accordingly, the
former telephoned a social welfare officer at the Social Council (socialnämnden)
and informed her of the applicant's health problems.
12. By letter the same day, the psychiatrist notified the applicant of the information
imparted to the Council. The relevant part of the letter read as follows:
"As you know, I have several times asked you to seek support for your son who,
naturally, cannot remain unaffected by your severe pains. As I have not been able
to convince you that this is necessary, I have called [a] social welfare officer and
expressed my concern. Unfortunately, I find myself obliged under the law to take
this action in an attempt to reduce future problems for the boy (and thereby also
for you)."
13. The psychiatrist's concern for the applicant's son was shared by the headmaster and a
teacher at the school he attended. In October 1991 they had contacted the Social Council
and expressed concern about his learning difficulties and his general state of health.
Following this, the Council commenced an investigation which, with Mrs Andersson's
agreement, led to the placement of her son in a non-residential therapeutic school on 2
March 1992.
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
31. The applicant contended that there had been a violation of Article 6 § 1 of the
Convention which, in so far as is relevant, reads:
"In the determination of his civil rights and obligations ..., everyone is entitled to
a ... hearing ... by [a] tribunal..."
20
Under this provision, she complained that she had not been afforded a possibility, prior to
the communication of the psychiatrist's statement to the Social Council, to challenge the
measure before a court (see paragraph 21 above).
32. The Government disputed that Article 6 § 1 was applicable and maintained that, in
any event, it had been complied with in the present case (see paragraphs 22-23 above).
The Commission, for its part, considered that the provision was applicable and that its
requirements had been met (see paragraph 22 above).
33. The Court must first examine whether Article 6 § 1 was applicable to the
disagreement between the applicant and the Swedish authorities as to the disclosure of
her medical data. It reiterates that, according to the principles laid down in its case-law
(see, for instance, the judgments of Zander v. Sweden, 25 November 1993, Series A no.
279-B, p. 38, § 22, and Kerojärvi v. Finland, 19 July 1995, Series A no. 322, p. 12, § 32),
it must ascertain whether there was a dispute ("contestation") over a "right" which can be
said, at least on arguable grounds, to be recognised under domestic law. The dispute must
be genuine and serious; it may relate not only to the existence of a right but also to its
scope and the manner of its exercise; and the outcome of the proceedings must be directly
decisive for the right in question. Finally, the right must be civil in character.
34. Under the rule on confidentiality contained in Chapter 7, section 1, of the Secrecy
Act, a duty of confidentiality applied to the kind of data at issue in the present case (see
paragraph 15 above). The provision was evidently designed to protect a patient's interests
in non-disclosure of medical data.
35. On the other hand, according to Chapter 14, section 1, of the Secrecy Act the rule of
confidentiality did not apply where a statutory obligation required the disclosure of
information to another authority (see paragraph 16 above). In the case under
consideration, if the chief psychiatrist possessed information about the applicant patient
to the effect that intervention by the Social Council was necessary for the protection of
her under age son, the psychiatrist was under a duty to report immediately to the Social
Council. That duty extended to all data in her possession which were potentially relevant
to the Social Council's investigation into the need to take protective measures with
respect to the son (see paragraphs 17-19 above) and depended exclusively on the
relevance of those data (section 71, subsections 2 and 4, of the Social Service Act).
36. In addition to the scope of this obligation, as described above, the Court notes that the
psychiatrist enjoyed a very wide discretion in assessing what data would be of
importance to the Social Council's investigation (ibid.). In this regard, she had no duty to
hear the applicant's views before transmitting the information to the Social Council (see
paragraph 21 above).
Accordingly, it transpires from the terms of the legislation in issue that a "right" to
prevent communication of such data could not, on arguable grounds, be said to be
recognised under national law (see the Masson and Van Zon v. the Netherlands judgment
of 28 September 1995, Series A no. 327, pp. 19-20, §§ 49-52). No evidence suggesting
the contrary has been adduced before the Court.
37. Having regard to the foregoing, the Court reaches the conclusion that Article 6 § 1
was not applicable to the proceedings under consideration and has therefore not been
violated in the present case.
21
M.S. v. SWEDEN (74/1996/693/885) 27 August 1997: communication, without
the patient's consent, of personal and confidential medical data by one public
authority to another
Sweden - communication, without the patient's consent, of personal and confidential
medical data by one public authority to another and lack of possibility for patient, prior
to the measure, to challenge it before a court (Secrecy Act 1980 and Industrial Injury
Insurance Act 1976)
I. ARTICLE 8 OF THE CONVENTION
A. Article 8 § 1
Under the Swedish system, the contested disclosure depended not only on fact that
applicant had submitted a compensation claim to the Social Insurance Office but also on
a number of factors beyond her control - it could not therefore be inferred from her
request for compensation that she had waived in an unequivocal manner her right to
respect for private life with regard to the medical records at the clinic - accordingly
Article 8 § 1 applied.
Medical records in question contained highly personal and sensitive data about applicant
- although they remained confidential, they had been disclosed to another public authority
and therefore to a wider circle of public servants - collection and storage of information
at clinic and its subsequent communication to Office had served different purposes disclosure thus entailed an interference with applicant's right to respect for private life.
B. Article 8 § 2
1. In accordance with the law
Requirement was satisfied as interference had a legal basis and was foreseeable.
2. Legitimate aim
Protection of the economic well-being of the country: communication of data was
potentially decisive for allocation of public funds to deserving claimants.
3. Necessary in a democratic society
The medical data were communicated by one public institution to another in context of an
assessment of whether applicant satisfied legal conditions for obtaining a benefit which
she herself had requested - the Office had a legitimate need to check information received
from her against data in the possession of the clinic - the claim concerned a back injury
which she had allegedly suffered and all the medical records produced to the Office
contained information relevant to applicant's back problems - allegation that clinic could
not reasonably have considered certain records material to the Office's decision was
unsubstantiated - in addition, the contested measure was subject to important limitations
and was accompanied by effective and adequate safeguards against abuse - there were
thus relevant and sufficient reasons for the communication of the applicant's medical
records by the clinic to the Office; the measure was not disproportionate to the legitimate
aim pursued.
Conclusion: no violation (unanimously).
II. ARTICLE 6 § 1 OF THE CONVENTION
The clinic had been under an obligation to supply the Office with information on the
applicant concerning circumstances of importance to the application of the Insurance Act
- thus, the obligation incumbent on the imparting authority vis-à-vis the requesting
authority depended exclusively on the relevance of the data in its possession; it
22
comprised all data which the clinic had in its possession concerning the applicant and
which were potentially relevant to the Office's determination of her compensation claim scope of this obligation and fact that the clinic enjoyed a very wide discretion in
assessing what data would be relevant - a "right" to prevent communication of such data
could not, on arguable grounds, be said to be recognised under national law.
Conclusions: inapplicable (six votes to three) and no violation (unanimously).
III. ARTICLE 13 OF THE CONVENTION
A separate issue arose under Article 13 - having regard to above findings under Article 8,
applicant had an arguable claim for the purposes of Article 13 - question whether she was
afforded an effective remedy - in this regard, it was open to her to bring criminal and civil
proceedings before the ordinary courts against the relevant staff of the clinic and to claim
damages for breach of professional secrecy - she thus had access to an authority
empowered both to deal with the substance of her Article 8 complaint and to grant her
relief - having regard to the limited nature of the disclosure and to the different
safeguards, in particular the Office's obligation to secure and maintain the confidentiality
of the information, the various ex post facto remedies referred to satisfied Article 13.
Conclusion: no violation (unanimously).
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
28. The applicant maintained that the communication of her medical records by the clinic
to the Social Insurance Office constituted a violation of her right to respect for private life
under Article 8 of the Convention, which reads:
"1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others."
29. The Government disputed that Article 8 § 1 was applicable to the matter complained
of by the applicant and maintained that, in any event, there had been no interference with
any of her rights guaranteed by that provision. In the alternative, they argued that the
measure had been justified under paragraph 2 of the Article.
30. The Commission was of the opinion that paragraph 1 of Article 8 applied, that there
had been an interference with the applicant's right to respect for private life under that
provision but that the interference had been justified under paragraph 2.
A. Article 8 § 1
1. Was Article 8 § 1 applicable?
31. In contesting the applicability of Article 8 § 1 the Government submitted that, by
having initiated the compensation proceedings, the applicant had waived her right to
confidentiality with regard to the medical data which the clinic had communicated to the
Office (see paragraph 11 above). The measure had constituted a foreseeable application
of the relevant Swedish law, from which it clearly followed that the Office was under an
obligation to request the information in issue, which the clinic had a corresponding duty
23
to impart (see paragraphs 18-19 above). In this connection, they stressed that the data had
not been made public but remained confidential in the Office (see paragraph 16 above).
32. The Court observes that under the relevant Swedish law, the applicant's medical
records at the clinic were governed by confidentiality (see paragraph 16 above).
Communication of such data by the clinic to the Office would be permissible under the
Insurance Act only if the latter authority had made a request and only to the extent that
the information was deemed to be material to the application of the Insurance Act (see
paragraph 18 above). This assessment was left exclusively to the competent authorities,
the applicant having no right to be consulted or informed beforehand (see paragraph 21
above).
It thus appears that the disclosure depended not only on the fact that the applicant had
submitted her compensation claim to the Office but also on a number of factors beyond
her control. It cannot therefore be inferred from her request that she had waived in an
unequivocal manner her right under Article 8 § 1 of the Convention to respect for private
life with regard to the medical records at the clinic. Accordingly, the Court considers that
this provision applies to the matters under consideration.
2. Was there an interference?
33. With reference to the arguments set out in paragraph 31 above, the Government
disputed that the communication of data in question amounted to an interference with the
applicant's right to respect for private life under that Article.
34. The applicant and the Commission, stressing that information of a private and
sensitive nature had been disclosed without her consent to a certain number of people at
the Office, maintained that the measure constituted an interference.
35. The Court notes that the medical records in question contained highly personal and
sensitive data about the applicant, including information relating to an abortion. Although
the records remained confidential, they had been disclosed to another public authority
and therefore to a wider circle of public servants (see paragraphs 12-13 above).
Moreover, whilst the information had been collected and stored at the clinic in connection
with medical treatment, its subsequent communication had served a different purpose,
namely to enable the Office to examine her compensation claim. It did not follow from
the fact that she had sought treatment at the clinic that she would consent to the data
being disclosed to the Office (see paragraph 10 above). Having regard to these
considerations, the Court finds that the disclosure of the data by the clinic to the Office
entailed an interference with the applicant's right to respect for private life guaranteed by
paragraph 1 of Article 8.
It remains to be determined whether the interference was justified under paragraph 2 of
Article 8.
B. Article 8 § 2
1. "In accordance with the law"
36. The applicant submitted that the disclosure of her medical records by the clinic had
exceeded the Office's request. Whilst the Office had only asked for medical records
relating to the time of her back injury allegedly sustained at work on 9 October 1981, the
clinic had produced records covering a period up to February 1986 (see paragraph 12
above). The information disclosed did not therefore meet the requirement contained in
Chapter 8, section 7, of the Insurance Act that only data requested should be produced
24
(see paragraph 18 above), and its communication had consequently not been "in
accordance with the law".
37. However, in the Court's view the terms of the above provision suggest that the
decisive factor in determining the scope of the imparting authority's duty to provide
information is the relevance of the information rather than the precise wording of the
request (see paragraph 18 above). The Court is satisfied that the interference had a legal
basis and was foreseeable; in other words, that it was "in accordance with the law".
2. Legitimate aim
38. The object of the disclosure was to enable the Office to determine whether the
conditions for granting the applicant compensation for industrial injury had been met.
The communication of the data was potentially decisive for the allocation of public funds
to deserving claimants. It could thus be regarded as having pursued the aim of protecting
the economic well-being of the country. Indeed this was not disputed before the Court.
On the other hand, the Court does not consider it necessary to examine the second aim
invoked by the Government, namely protection of the "rights ... of others".
3. "Necessary in a democratic society"
39. In the applicant's submission, the disclosure of her medical records could not be
regarded as having been necessary in a democratic society. She maintained that, while
there was no dispute as to the fact that her disability prevented her from working, there
was disagreement as to its cause, whether it was spondylolisthesis or the alleged work
injury (see paragraphs 9-10 above). Information about her abortion in 1985 had been
irrelevant to the issue to be determined by the Office (see paragraphs 12-13 above). In
addition, she argued that the duty of confidentiality to which public servants at the Office
were subject provided a weaker protection of the applicant's interests than that applying
to medical personnel at the clinic. Thus whilst it was for the patient to show that he or she
had suffered damage as a result of disclosure by an ordinary public servant, a doctor had
to show that disclosure had not caused damage.
In addition, she maintained that an effective protection of her rights under Article 8
required that she should have been notified of the clinic's intention to communicate the
data and afforded an opportunity to exercise judicial remedies against that decision before
it was implemented (see paragraph 21 above).
40. The Government and the Commission were of the view that the disclosure was
"necessary". Not only had the medical records been relevant to the Office's decision but
the fact that they might be relevant must also have been apparent to her when she made
her claim. Even the information concerning the abortion had related to her back problems
(see paragraph 13 above). If the Office had been requested to rely exclusively on the
applicant's submissions, there would have been a risk of her withholding relevant
evidence. Since the data remained confidential while they were in the possession of the
Office (see paragraph 16 above), the interference which the disclosure had entailed was
of a limited nature.
41. The Court reiterates that the protection of personal data, particularly medical data, is
of fundamental importance to a person's enjoyment of his or her right to respect for
private and family life as guaranteed by Article 8 of the Convention. Respecting the
confidentiality of health data is a vital principle in the legal systems of all the Contracting
Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient
but also to preserve his or her confidence in the medical profession and in the health
25
services in general. The domestic law must afford appropriate safeguards to prevent any
such communication or disclosure of personal health data as may be inconsistent with the
guarantees in Article 8 of the Convention (see the Z v. Finland judgment of 25 February
1997, Reports of Judgments and Decisions 1997-…, p. 2758, § 95).
Bearing in mind the above considerations and the margin of appreciation enjoyed by the
State in this area, the Court will examine whether, in the light of the case as a whole, the
reasons adduced to justify the interference were relevant and sufficient and whether the
measure was proportionate to the legitimate aim pursued (ibid., § 94).
42. Turning to the particular circumstances, the Court notes that the applicant's medical
data were communicated by one public institution to another in the context of an
assessment of whether she satisfied the legal conditions for obtaining a benefit which she
herself had requested (see paragraphs 11-14 above). It recognises that, in deciding
whether to accept the applicant's compensation claim, the Office had a legitimate need to
check information received from her against data in the possession of the clinic. In the
absence of objective information from an independent source, it would have been
difficult for the Office to determine whether the claim was well-founded.
That claim concerned a back injury which she had allegedly suffered in 1981 and all the
medical records produced by the clinic to the Office, including those concerning her
abortion in 1985 and the treatment thereafter, contained information relevant to the
applicant's back problems. As appears from the records of 1985, her back pains
constituted the main reason for the termination of pregnancy (see paragraphs 12-13
above). Moreover, the data covered the period in respect of which she claimed
compensation under the Insurance Act (see paragraphs 10-11 above). In the Court's view,
the applicant has not substantiated her allegation that the clinic could not reasonably have
considered her post 1981 medical records to be material to the Office's decision.
43. In addition, under the relevant law it is a condition for imparting the data concerned
that the Office has made a request and that the information be of importance for its
application of the Insurance Act (see paragraph 18 above). Staff of the clinic could incur
civil and/or criminal liability had they failed to observe these conditions (see paragraph
22 above). The Office, as the receiver of the information, was under a similar duty to
treat the data as confidential, subject to similar rules and safeguards as the clinic (see
paragraphs 20 and 22 above).
In the circumstances the contested measure was therefore subject to important limitations
and was accompanied by effective and adequate safeguards against abuse (see the abovementioned Z v. Finland judgment, § 103).
44. Having regard to the foregoing, the Court considers that there were relevant and
sufficient reasons for the communication of the applicant's medical records by the clinic
to the Office and that the measure was not disproportionate to the legitimate aim pursued.
Accordingly, it concludes that there has been no violation of the applicant's right to
respect for private life, as guaranteed by Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
45. The applicant further alleged a breach of Article 6 § 1 of the Convention, which, in so
far as is relevant, reads:
"In the determination of his civil rights and obligations ..., everyone is entitled to
a ... hearing ... by [a] tribunal..."
26
She complained in particular that, contrary to this provision, she had not been afforded a
possibility, prior to the communication of her medical records by the clinic, to challenge
the measure before a court (see paragraph 21 above).
46. The Government disputed that Article 6 § 1 was applicable and maintained that, in
any event, it had been complied with in the present case (see paragraphs 22-23 above).
The Commission, for its part, considered that the provision was applicable and had been
complied with (see paragraph 22 above).
47. The Court must first examine whether Article 6 § 1 was applicable to the
disagreement between the applicant and the Swedish authorities as to the disclosure of
her medical records. It reiterates that, according to the principles laid down in its case-law
(see the judgments of Zander v. Sweden, 25 November 1993, Series A no. 279-B, p. 38, §
22, and Kerojärvi v. Finland, 19 July 1995, Series A no. 322, p. 12, § 32), it must
ascertain whether there was a dispute ("contestation") over a "right" which can be said, at
least on arguable grounds, to be recognised under domestic law. The dispute must be
genuine and serious; it may relate not only to the existence of a right but also to its scope
and the manner of its exercise; and the outcome of the proceedings must be directly
decisive for the right in question. Finally, the right must be civil in character.
48. Under the rule on confidentiality in Chapter 7, section 1, of the Secrecy Act, a duty of
confidentiality applied to the data at issue in the present case (see paragraph 16 above).
The provision was evidently designed to protect a patient's interest in non-disclosure of
medical data.
49. On the other hand, according to Chapter 14, section 1, of the Secrecy Act the rule of
confidentiality did not apply where a statutory obligation required the disclosure of
information to another authority (see paragraph 17 above). In the case under
consideration, the clinic had been under an obligation to supply the Office with
"information on [the applicant] concerning circumstances of importance to the
application of the Act ..." (Chapter 8, section 7 of the Insurance Act). Thus, the obligation
incumbent on the imparting authority vis-à-vis the requesting authority depended
exclusively on the relevance of the data in its possession; it comprised all data which the
clinic had in its possession concerning the applicant and which were potentially relevant
to the Office's determination of her compensation claim.
In addition to the scope of this obligation as described above, the Court notes that the
clinic enjoyed a very wide discretion in assessing what data would be of importance to
the application of the Insurance Act. In this regard, it had no duty to hear the applicant's
views before transmitting the information to the Office (see paragraph 21 above).
Accordingly, it appears from the very terms of the legislation in issue that a "right" to
prevent communication of such data could not, on arguable grounds, be said to be
recognised under national law (see Masson and Van Zon v. the Netherlands judgment of
28 September 1995, Series A no. 327, pp. 19-20, §§ 49-52). No evidence suggesting the
contrary has been adduced before the Court.
50. Having regard to the foregoing, the Court reaches the conclusion that Article 6 § 1
was not applicable to the proceedings under consideration and has therefore not been
violated in the present case.
27
CAMENZIND v. SWITZERLAND (136/1996/755/954) 16 December 1997:
search of residential premises carried out in connection with administrative
criminal law proceedings -- Interference "in accordance with the law" and
pursued aim consistent with Convention: "prevention of disorder or crime".
Switzerland – search of residential premises carried out in connection with administrative
criminal law proceedings (section 48 of the Federal Administrative Criminal Law Act)
I. ARTICLE 8 OF THE CONVENTION
A. Whether there was an interference
Interference with applicant’s right to respect for his home.
B. Whether the interference was justified
Interference "in accordance with the law" and pursued aim consistent with Convention:
"prevention of disorder or crime".
Contracting States may consider it necessary to resort to measures such as searches of
residential premises and seizures in order to obtain physical evidence of certain offences
– Court will assess whether reasons adduced to justify such measures were relevant and
sufficient and whether proportionality principle has been adhered to – with regard to
latter point, Court ensures that relevant legislation and practice afford individuals
adequate and effective safeguards against abuse – it must be particularly vigilant where
authorities are empowered under national law to order and effect searches without a
judicial warrant –Court must also consider particular circumstances of each case – in case
before it, Swiss federal legislation provided safeguards and, more particularly, search had
been of very limited scope.
Conclusion: no violation (eight votes to one).
B. Whether the interference was justified
1. "In accordance with the law"
36. The applicant denied that the search had been "in accordance with the law". He
argued that the act of which he had been accused was not an "offence" but a
"breach of administrative regulations" within the meaning of section 3 of the Federal
Administrative Criminal Law Act of 22 March 1974, as amended ("the DPA").
Section 45(2) of the DPA therefore operated to preclude the use of any coercive measures
against him. Furthermore, that Act provided, contrary to the general
principles of administrative law, that coercive measures were to be ordered by public
servants and not by a judicial authority. Lastly, section 48(1) of the DPA
provided that searches could only be carried out on premises if it was "likely" that the
object sought was to be found there. However, as the applicant had informed
the officials present when the search was carried out that the telephone was no longer in
his possession, that statutory requirement had not been satisfied.
37. The Court reiterates that the expression "in accordance with the law", within the
meaning of Article 8 § 2 of the Convention, requires that the impugned
28
measure should have some basis in domestic law and that the law in question should be
accessible to the person concerned – who must moreover be able to
foresee its consequences for him – and compatible with the rule of law (see the Kruslin v.
France judgment of 24 April 1990, Series A no. 176-A, p. 20, § 27). In
the instant case it notes, firstly, that under section 42 of the Federal Act of 1922
"regulating telegraph and telephone communications" it was an offence, inter alia,
to "[set up, operate or use], without a licence or permit ... transmitters or receivers or any
equipment for which a licence or permit is required and which is used for
electric or radio transmission of signals, images or sounds" (see paragraph 16 above). The
Court further notes that to enable offences under administrative criminal
law to be detected, section 48 of the DPA provides that searches may be carried out in
dwellings and other premises "if ... evidence of the commission of the
offence [is] to be found there" and that the Act contains safeguards against arbitrary
interference by the authorities with the right to respect for the home (see
paragraphs 17-25 above and paragraph 46 below). Since the applicant did not supply any
evidence in support of his allegations, the Court, like the Government
and the Commission, accepts that the measure complained of was "in accordance with the
law".
2. Legitimate aim
38. Mr Camenzind maintained that the aim of the search – to find evidence of the
offence – had become unlawful once he had informed the officials responsible
that the telephone in question was no longer in his possession.
39. Neither the Government nor the Commission accepted that proposition.
40. The Court notes that the applicant was suspected of having contravened section 42 of
the Federal Act of 1922 "regulating telegraph and telephone
communications" by using a cordless telephone of an unauthorised type. There is,
therefore, no doubt that the search of the building in which the applicant lived,
with a view to finding and seizing the telephone, pursued an aim that was consistent with
the Convention, namely the "prevention of disorder or crime".
3. "Necessary in a democratic society"
41. Mr Camenzind argued that it had not been "necessary" for the purpose of obtaining
physical proof of the offence, and hence of achieving the aim pursued, to
search his property. Such proof had already existed as the conversation had been recorded
by the radio communications surveillance unit of the Head Office of the
Swiss Post and Telecommunications Authority (PTT) and he had admitted using the
telephone. Other factors showed the measure to have been disproportionate:
he had not used the telephone again during the six-week period the authorities had
allowed to elapse between the commission of the offence and the search, the act
he was accused of was "trifling" and the authorities could have taken measures that were
less coercive. In short, the interference had not met a "pressing social
29
need" within the meaning of the case-law of the Convention institutions.
42. The Government submitted that the Contracting States were permitted by the Court’s
case-law to have recourse to certain coercive measures in order to
obtain evidence of an offence, in so far as their relevant legislation and practice afforded
adequate and effective safeguards against abuse and the resulting
interference was proportionate to the legitimate aim pursued. The fact that the search had
been carried out without a judicial warrant therefore did not necessarily
mean that there had been a violation of the Convention. On the contrary, the statutory
basis on which it had been ordered, the manner in which it had been
executed and its very limited scope showed it to have been "necessary in a democratic
society".
43. The Commission reached the same conclusion.
44. Under the Court’s settled case-law, the notion of "necessity" implies that the
interference corresponds to a pressing social need and, in particular, that it is
proportionate to the legitimate aim pursued; in determining whether an interference is
"necessary in a democratic society", the Court will take into account that a
margin of appreciation is left to the Contracting States (see, for example, the Olsson v.
Sweden (no.1) judgment of 24 March 1988, Series A no. 130, pp. 31-32,
§ 67).
45. The Contracting States may consider it necessary to resort to measures such as
searches of residential premises and seizures in order to obtain physical
evidence of certain offences. The Court will assess whether the reasons adduced to justify
such measures were relevant and sufficient and whether the
aforementioned proportionality principle has been adhered to (see the Funke v. France,
Crémieux v. France and Miailhe v. France (no. 1) judgments of 25
February 1993, Series A no. 256-A, pp. 24-25, §§ 55-57, Series A no. 256-B, pp. 62-63,
§§ 38-40, and Series A no. 256-C, pp. 89-90, §§ 36-38,
respectively; and, mutatis mutandis, the Z v. Finland judgment of 25 February 1997,
Reports of Judgments and Decisions 1997-..., § 94). As regards the latter
point, the Court must firstly ensure that the relevant legislation and practice afford
individuals "adequate and effective safeguards against abuse" (ibid.);
notwithstanding the margin of appreciation which the Court recognises the Contracting
States have in this sphere, it must be particularly vigilant where, as in the
present case, the authorities are empowered under national law to order and effect
searches without a judicial warrant. If individuals are to be protected from
arbitrary interference by the authorities with the rights guaranteed under Article 8, a legal
framework and very strict limits on such powers are called for. Secondly,
the Court must consider the particular circumstances of each case in order to determine
whether, in the concrete case, the interference in question was
proportionate to the aim pursued.
30
46. In the present case the purpose of the search was to seize an unauthorised cordless
telephone that Mr Camenzind was suspected of having used contrary to
section 42 of the Federal Act of 1922 regulating telegraph and telephone communications
(see paragraphs 7-9 above). Admittedly, the authorities already had
some evidence of the offence as the radio communications surveillance unit of the Head
Office of the PTT had recorded the applicant’s conversation and Mr
Camenzind had admitted using the telephone (see paragraphs 7 and 10 above).
Nevertheless, the Court accepts that the competent authorities were justified in
thinking that the seizure of the corpus delicti – and, consequently, the search – were
necessary to provide evidence of the relevant offence.
With regard to the safeguards provided by Swiss law, the Court notes that under the
Federal Administrative Criminal Law Act of 22 March 1974, as amended
(see paragraphs 17-25 above), a search may, subject to exceptions, only be effected under
a written warrant issued by a limited number of designated senior
public servants (section 48) and carried out by officials specially trained for the purpose
(section 20); they each have an obligation to stand down if circumstances
exist which could affect their impartiality (section 29). Searches can only be carried out
in "dwellings and other premises ... if it is likely that a suspect is in hiding
there or if objects or valuables liable to seizure or evidence of the commission of an
offence are to be found there" (section 48); they cannot be conducted on
Sundays, public holidays or at night "except in important cases or where there is
imminent danger" (section 49). At the beginning of a search the investigating official
must produce evidence of identity and inform the occupier of the premises of the purpose
of the search. That person or, if he is absent, a relative or a member of
the household must be asked to attend. In principle, there will also be a public officer
present to ensure that "[the search] does not deviate from its purpose". A
record of the search is drawn up immediately in the presence of the persons who
attended; if they so request, they must be provided with a copy of the search
warrant and of the record (section 49). Furthermore, searches for documents are subject
to special restrictions (section 50). In addition, suspects are entitled,
whatever the circumstances, to representation (section 32); anyone affected by an
"investigative measure" who has "an interest worthy of protection in having the
measure ... quashed or varied" may complain to the Indictment Division of the Federal
Court (sections 26 and 28). Lastly, a "suspect" who is found to have no case
to answer may seek compensation for the losses he has sustained (sections 99-100).
As regards the manner in which the search was conducted, the Court notes that it was at
Mr Camenzind’s request that it was carried out by a single official (see
paragraph 11 above). It took place in the applicant’s presence after he had been allowed
to consult the file on his case and telephone a lawyer (see paragraph 10
above). Admittedly, it lasted almost two hours and covered the entire house, but the
investigating official did no more than check the telephones and television sets;
he did not search in any furniture, examine any documents or seize anything (see
paragraph 11 above).
31
47. Having regard to the safeguards provided by Swiss legislation and especially to the
limited scope of the search, the Court accepts that the interference with the
applicant’s right to respect for his home can be considered to have been proportionate to
the aim pursued and thus "necessary in a democratic society" within the
meaning of Article 8. Consequently, there has not been a violation of that provision.
KOPP v. SWITZERLAND (13/1997/797/1000) 25 March 1998: – monitoring of a
law firm’s telephone lines on orders of the Federal Public Prosecutor -- law did
not clearly state how, under what conditions and by whom distinction was to be
drawn between matters specifically connected with a lawyer’s work under
instructions from a party to proceedings and those relating to activity other than
that of counsel
Switzerland – monitoring of a law firm’s telephone lines on orders of the Federal Public
Prosecutor (sections 66(1 bis) and 77 of the Federal Criminal Procedure Act – "the
FCPA")
I. ARTICLE 8 OF THE CONVENTION
A. Government’s preliminary objection
Reference to Court’s case-law – applicant had complained in his administrative appeal to
the Federal Council that tapping of his telephones had been illegal – consequently, he had
raised in substance his complaint relating to Article 8 of Convention.
Conclusion: objection dismissed (unanimously)
B. Merits of complaint
1. Applicability
Telephone calls from and to business premises may be covered by notions of "private
life" and "correspondence" within meaning of Article 8 § 1 – not disputed.
2. Compliance
(a) Existence of interference
Interception of telephone calls constituted "interference by a public authority", within
meaning of Article 8 § 2, with exercise of a right guaranteed to applicant under paragraph
1 - subsequent use of recordings made had no bearing on that finding.
(b) Justification of the interference
i. Whether interference was "in accordance with the law"
- Whether there was a legal basis in Swiss law
Reference to Court’s case-law – in principle, it was not for the Court to express an
opinion contrary to that of Federal Department of Justice and Police and Federal Council
on compatibility of judicially ordered tapping of applicant’s telephone with sections
66(1) and 77 of the FCPA – Court could not ignore opinions of academic writers and
Federal
Court’s case-law on the question - interference complained of therefore had a legal basis
in Swiss law.
- Quality of the law
Accessibility of the law: not in doubt in present case.
Law’s "foreseeability" as to meaning and nature of applicable measures:
32
As interception constituted a serious interference with private life and correspondence, it
had to be based on a "law" that was particularly precise, especially as the technology
available for use was continually becoming more sophisticated.
Safeguards afforded by Swiss law not without value – however, contradiction between
clear text of legislation which protected legal professional privilege when a lawyer was
being monitored as a third party and practice followed in present case - law did not
clearly state how, under what conditions and by whom distinction was to be drawn
between matters specifically connected with a lawyer’s work under instructions from a
party to proceedings and those relating to activity other than that of counsel - above all, it
was astonishing that in practice this task was assigned to an official of the Post Office’s
legal department, a member of the executive, without supervision by an independent
judge – accordingly, applicant, as a lawyer, had not enjoyed minimum degree of
protection required by rule of law in a democratic society.
Conclusion: violation (unanimously)
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
B. Merits of the complaint
2. Compliance with Article 8
(a) Existence of an interference
51. The Government contended that the question whether there had really been
interference by the authorities with the applicant’s private life and correspondence
remained open, since none of the recorded conversations in which he had taken part had
been brought to the knowledge of the prosecuting authorities, all the recordings had been
destroyed and no use whatsoever had been made of any of them.
52. The Court notes that it was not contested that the Federal Public Prosecutor had
ordered the monitoring of the telephone lines of Mr Kopp’s law firm, that the President of
the Indictment Division of the Federal Court had approved that measure and that it had
lasted from 21 November to 11 December 1989 (see paragraphs 16-18 above).
53. Interception of telephone calls constitutes "interference by a public authority", within
the meaning of Article 8 § 2, with the exercise of a right guaranteed to the applicant
under paragraph 1 (see, among other authorities, the Malone v. the United Kingdom
judgment of 2 August 1984, Series A no. 82, p. 30, § 64, and the above-mentioned
Halford judgment, p. 1017, § 48 in fine). The subsequent use of the recordings made has
no bearing on that finding.
(b) Justification of the interference
54. Such interference breaches Article 8 unless it is "in accordance with the law", pursues
one or more of the legitimate aims referred to in paragraph 2 and is, in addition,
"necessary in a democratic society" to achieve those aims.
(i) "In accordance with the law"
55. The expression "in accordance with the law", within the meaning of Article 8 § 2,
requires firstly that the impugned measure should have some basis in domestic law; it
also refers to the quality of the law in question, requiring that it should be accessible to
the person concerned, who must moreover be able to foresee its consequences for him,
and compatible with the rule of law.
1. Whether there was a legal basis in Swiss law
33
56. The applicant submitted that in the present case there was no legal basis in Swiss law,
since sections 66(1 bis) and 77 of the FCPA (see paragraph 35 above) expressly
prohibited the tapping of a lawyer’s telephone lines where the latter was being monitored
as a third party.
57. The Commission accepted this argument. It took the view that the purpose of the
legal provisions in question was to protect the professional relationship between, among
others, a lawyer and his clients. For this special relationship to be respected, it had to be
assumed that all the telephone calls of a law firm were of a professional nature.
Consequently, the Swiss authorities’ interpretation to the effect that these provisions gave
them the power to record and listen to a lawyer’s telephone conversations before deciding
whether they were covered by professional privilege could not be accepted.
58. The Government maintained in the first place that telephone tapping in the course of
proceedings conducted by the federal authorities was governed by a set of exhaustive and
detailed rules (see paragraphs 35-37 above). Moreover, according to sections 66(1 bis)
and 77 of the FCPA, and the relevant legal literature and case-law, legal professional
privilege covered only activities specific to a lawyer’s profession.
59. The Court reiterates that it is primarily for the national authorities, notably the courts,
to interpret and apply domestic law (see, among many other authorities, the abovementioned Malone judgment, p. 35, § 79, and the Kruslin v. France and Huvig v. France
judgments of 24 April 1990, Series A nos. 176-A and 176-B, p. 21, § 29, and p. 53, § 28,
respectively). In principle, therefore, it is not for the Court to express an opinion contrary
to that of the Federal Department of Justice and Police and the Federal Council on the
compatibility of the judicially ordered tapping of Mr Kopp’s telephone with sections 66(1
bis) and 77 of the FCPA.
60. Moreover, the Court cannot ignore the opinions of academic writers and the Federal
Court’s case-law on the question, which the Government cited in their memorial (see
paragraphs 38-39 above).
In relation to paragraph 2 of Article 8 of the Convention and other similar clauses, the
Court has always understood the term "law" in its "substantive" sense, not its "formal
one", and has in particular included unwritten law therein (see the above-mentioned
Kruslin and Huvig judgments, pp. 21-22, § 29 in fine, and pp. 53-54, § 28 in fine,
respectively).
61. In short, the interference complained of had a legal basis in Swiss law.
2. "Quality of the law"
62. The second requirement which emerges from the phrase "in accordance with the law"
– the accessibility of the law – does not raise any problem in the instant case.
63. The same is not true of the third requirement, the law’s "foreseeability" as to the
meaning and nature of the applicable measures.
64. The Court reiterates in that connection that Article 8 § 2 requires the law in question
to be "compatible with the rule of law". In the context of secret measures of surveillance
or interception of communications by public authorities, because of the lack of public
scrutiny and the risk of misuse of power, the domestic law must provide some protection
to the individual against arbitrary interference with Article 8 rights. Thus, the domestic
law must be sufficiently clear in its terms to give citizens an adequate indication as to the
circumstances in and conditions on which public authorities are empowered to resort to
34
any such secret measures (see, as the most recent authority, the above-mentioned Halford
judgment, p. 1017, § 49).
65. The Government submitted that the relevant legislation taken as a whole and the caselaw of the Federal Court warranted the conclusion that the telephone tapping ordered in
the instant case did in fact satisfy the requirement of foreseeability, as defined by the
European Court.
66. The Court must therefore examine the "quality" of the legal rules applicable to Mr
Kopp in the instant case.
67. It notes in the first place that the telephone lines of the applicant’s law firm were
tapped pursuant to sections 66 et seq. of the FCPA (see paragraph 25 above) and that he
was monitored as a third party.
Under section 66(1 bis) of the FCPA, "… third parties may also be monitored if specific
facts give rise to the presumption that they are receiving or imparting information
intended for the accused or suspect or sent by him. Persons who, by virtue of section 77,
may refuse to give evidence shall be exempt."
Section 77 of the FCPA provides: "… lawyers … cannot not be required to give evidence
about secrets confided to them on account of their … profession."
68. On the face of it, the text seems clear and would appear to prohibit the monitoring of
a lawyer’s telephone lines when he is neither suspected nor accused. It is intended to
protect the professional relations between a lawyer and his clients through the
confidentiality of telephone conversations.
69. In the present case, moreover, the President of the Indictment Division adverted to
that principle of the law, since the order of 23 November 1989 (see paragraph 18 above)
states: "the lawyers’ conversations are not to be taken into account". Similarly the Federal
Public Prosecutor’s Office mentioned it in the letter of 6 March 1990 informing the
applicant that his telephone lines had been tapped (see paragraph 25 above) and the
Federal Council likewise referred to it in its decision of 30 June 1993 (see paragraph 31
above).
70. However, as the Court has already observed (see paragraph 52 above), all the
telephone lines of Mr Kopp’s law firm were monitored from 21 November to 11
December 1989.
71. The Government sought to resolve this contradiction by referring to the opinions of
academic writers and the Federal Court’s case-law to the effect that legal professional
privilege covered only matters connected with a lawyer’s profession. They added that Mr
Kopp, the husband of a former member of the Federal Council, had not had his
telephones tapped in his capacity as a lawyer. In the instant case, in accordance with
Swiss telephone-monitoring practice, a specialist Post Office official had listened to the
tape in order to identify any conversations relevant to the proceedings in progress, but no
recording had been put aside and sent to the Federal Public Prosecutor’s Office.
72. The Court, however, is not persuaded by these arguments.
Firstly, it is not for the Court to speculate as to the capacity in which Mr Kopp had had
his telephones tapped, since he was a lawyer and all his law firm’s telephone lines had
been monitored.
Secondly, tapping and other forms of interception of telephone conversations constitute a
serious interference with private life and correspondence and must accordingly be based
on a "law" that is particularly precise. It is essential to have clear, detailed rules on the
35
subject, especially as the technology available for use is continually becoming more
sophisticated (see the above-mentioned Kruslin and Huvig judgments, p. 23, § 33, and p.
55, § 32, respectively).
In that connection, the Court by no means seeks to minimise the value of some of the
safeguards built into the law, such as the requirement at the relevant stage of the
proceedings that the prosecuting authorities’ telephone-tapping order must be approved
by the President of the Indictment Division (see paragraphs 18 and 35 above), who is an
independent judge, or the fact that the applicant was officially informed that his telephone
calls had been intercepted (see paragraph 25 above).
73. However, the Court discerns a contradiction between the clear text of legislation
which protects legal professional privilege when a lawyer is being monitored as a third
party and the practice followed in the present case. Even though the case-law has
established the principle, which is moreover generally accepted, that legal professional
privilege covers only the relationship between a lawyer and his clients, the law does not
clearly state how, under what conditions and by whom the distinction is to be drawn
between matters specifically connected with a lawyer’s work under instructions from a
party to proceedings and those relating to activity other than that of counsel.
74. Above all, in practice, it is, to say the least, astonishing that this task should be
assigned to an official of the Post Office’s legal department, who is a member of the
executive, without supervision by an independent judge, especially in this sensitive area
of the confidential relations between a lawyer and his clients, which directly concern the
rights of the defence.
75. In short, Swiss law, whether written or unwritten, does not indicate with sufficient
clarity the scope and manner of exercise of the authorities’ discretion in the matter.
Consequently, Mr Kopp, as a lawyer, did not enjoy the minimum degree of protection
required by the rule of law in a democratic society. There has therefore been a breach of
Article 8.
VALENZUELA CONTRERAS v. SPAIN (58/1997/842/1048) 30 July 1998:
monitoring of telephone line in connection with criminal proceedings against
subscriber -- Foreseeability of law: telephone taps constituted serious
interference with right to respect for private life and correspondence – had to be
based on an especially precise "law".
Spain – monitoring of telephone line in connection with criminal proceedings against
subscriber
I. ARTICLE 6 OF THE CONVENTION
Compass of case delimited by Commission’s decision on admissibility – Court had no
jurisdiction to revive issues declared inadmissible.
Conclusion : no jurisdiction (unanimously).
II. ARTICLE 8 OF THE CONVENTION
A. Applicability
Telephone calls from a person’s home came within notions of "private life" and
"correspondence" referred to in Article 8 § 1 – point not disputed.
B. Compliance
36
(a) General principles
Recapitulation of Court’s case-law.
(b) Application of those principles in instant case
1. Whether there has been an interference
Tapping of applicant’s telephone line constituted "interference by a public authority" in
exercise of right to respect for his private life and correspondence – point not disputed.
2. Was interference justified?
(i) Was interference "in accordance with the law"?
Not contested that there was legal basis in Spanish law.
No doubt in instant case that law was accessible.
Foreseeability of law: telephone taps constituted serious interference with right to respect
for private life and correspondence – had to be based on an especially precise "law".
In sphere of monitoring telephone communications guarantees stating extent of
authorities’ discretion and manner in which it was to be exercised had to be set out in
detail in domestic law in order for it to have binding force which circumscribed judges’
discretion in application of such measures – Spanish law did not indicate with sufficient
certainty at material time extent of authorities’ discretion in domain concerned or way in
which it was to be exercised – evolution in legislation and case-law on subject had not
begun until after order to monitor applicant’s telephone line had been made.
Conclusion : violation (unanimously).
ENGLAND
This section requires elaboration
Summary and photocopies:
Three elements of defamation:
lower the plaintiff in the estimation of right thinking members of society; reference to
plaintiff; publication.
Defenses:
justification - the truth; Fair comment; absolute privilege; qualified privilege: when under
a legal, social or moral duty to communicate the defamatory statement; innocent
dissemination.
Criminal Libel:
when the libel is likely to disturb the peace and seriously affect reputation.
37
Protection of privacy:
Kaye v Robertson [1991] FSR 62: no right to privacy.
Lord Chancellor’s Department published Stone report in 1993 proposing introduction of
tort law of privacy. Also see Calcutt’s: Review of Press Regulation
Trespass:
a physical intrusion; Nuisance: requires repitition;
Data Protection Act 1984:
provides limited protection of privacy for personal information stored electronically;
Breach of Confidence:
common law remedy- used to stop newspaper publishing marriage secrets 
Argyll v Argyll [1967] Ch 302.
Must be a breach of confidence with ‘owner’ of information. X v X [1988] 2 All ER 648.
No breach where names of doctors suffering from AIDS even though info came from
confidential records.
Canada
Legal Rights
8. Everyone has the right to be secure against unreasonable search or seizure.
Enforcement
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such remedy
as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was
obtained in a manner that infringed or denied any rights or freedoms guaranteed by this
Charter, the evidence shall be excluded if it is established that, having regard to all the
circumstances, the admission of it in the proceedings would bring the administration of
justice into disrepute.
R. v. Caslake [1998] 1 S.C.R. 51: -- Search and seizure -- Inventory search of
accused's car following lawful arrest -- Search conducted pursuant to police
policy and without warrant or permission -- Admissibility of evidence
1997: November 10; 1998: January 22.
Present: Lamer C.J. and L'Heureux-Dubé, Gonthier, Cory, McLachlin, Major and
Bastarache JJ.
38
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
Constitutional law -- Charter of Rights -- Search and seizure -- Inventory search of
accused's car following lawful arrest -- Search conducted pursuant to police policy and
without warrant or permission -- Whether search infringing Charter right to freedom
from unreasonable search or seizure -- Canadian Charter of Rights and Freedoms, s. 8.
Constitutional law -- Charter of Rights -- Admissibility of evidence --Evidence seized as
result of inventory search of accused's car following lawful arrest --Search conducted
pursuant to police policy and without warrant or permission -- Whether evidence found
in search in violation of Charter admissible -- Canadian Charter of Rights and
Freedoms, s. 24(2).
An RCMP officer, several hours after arresting the accused for possession of narcotics,
conducted an inventory search of the accused's impounded car pursuant to police policy
and found cash and two individual packages of cocaine. He did not have permission or a
search warrant. The accused unsuccessfully appealed his conviction of possession of
marijuana for the purposes of trafficking and of possession of cocaine. At issue here was
whether the search of the car was consistent with s. 8 of the Canadian Charter of Rights
and Freedoms which guarantees the right to be secure against unreasonable search or
seizure, and if not consistent, whether the evidence should have been admitted.
Held: The appeal should be dismissed.
Per Lamer C.J. and Cory, McLachlin and Major JJ.: A search, to be reasonable under s. 8
of the Charter, must be authorized by law, the law itself must be reasonable, and the
search must be carried out in a reasonable manner. Because a warrantless search has been
held to be prima facie unreasonable, once the accused has demonstrated that the search
was warrantless, the Crown has the burden of showing that the search was, on the balance
of probabilities, reasonable.
Searches and seizures must be authorized by law and can fail to meet this requirement if
any one of three conditions is not met. First, the state authority conducting the search
must be able to point to a specific statute or common law rule that authorizes the search.
Second, the search must be carried out in accordance with the procedural and substantive
requirements the law provides. Third, a search must not exceed its scope as to area and as
to the items for which the law has granted the authority to search.
If the law on which the Crown is relying for authorization is the common law doctrine of
search incident to arrest, then the limits of this doctrine must be respected. The most
important of these limits is that the search must be truly incidental to the arrest: the police
must be able to explain, within the purposes recognized in the jurisprudence (protecting
the police, protecting the evidence, discovering evidence) or by reference to some other
valid purpose, why they conducted a search. They do not need reasonable and probable
grounds. However, they must have subjectively had some reason related to the arrest for
conducting the search at the time the search was carried out, and that reason must be
objectively reasonable. Delay and distance do not automatically preclude a search from
being incidental to arrest, but they may cause the court to draw a negative inference. That
inference may be rebutted by a proper explanation.
A police search of the car for the purpose of finding evidence which could be used at the
accused's trial on the charge of possessing marijuana for purposes of trafficking would
have been well within the scope of the search incident to arrest power, as there was
clearly sufficient circumstantial evidence to justify a search. However, the police cannot
39
rely on the fact that, objectively, a legitimate purpose for the search existed when that is
not the purpose for which they searched. Agents of the state must act in accordance with
the rule of law. Hence, they must not only objectively search within the permissible scope
but also turn their mind to this scope before searching, and satisfy themselves that there is
a valid purpose for the search. Here, the purpose of the search was to inventory the
contents of the vehicle which falls outside the bounds of the legitimate purposes of search
incident to arrest.
The delay in searching the vehicle was not, in and of itself, problematic.
The evidence should not be excluded under s. 24(2) of the Charter. First, the evidence
was non-conscriptive and would have no effect on the fairness of the trial. Second, the
breach was not serious. The inobtrusiveness of the search, the individual's low
expectation of privacy in the area searched, the existence of reasonable and probable
grounds and the good faith of the police all pointed in favour of admitting the evidence.
Finally, excluding the evidence would have a more serious impact on the repute of the
administration of justice than admitting it for the prosecution had no case without the
evidence.
Per L'Heureux-Dubé, Gonthier and Bastarache JJ.: The search, given that the arrest was
lawful, was incidental to the arrest because it was related, subordinated, to the arrest,
rather than the arrest's being incidental to the search. The common law right to search
incidentally to an arrest extends to an accused's vehicle as part of the accused's immediate
surroundings. The question of delay was immaterial for the search to qualify as
"incidental".
Regardless of the police officer's subjective belief in the purpose and justification for his
inventory search, the officer had the right to search the vehicle pursuant to the common
law power of search incidental to an arrest in the circumstances of this case. This power
draws its authority from the arrest itself. It is not necessary to establish reasonable and
probable grounds independently to conduct a search incidental to an arrest. There was no
onus on the Crown to establish at trial that the police officer was acting pursuant to a
specific purpose recognized in the jurisprudence in order to establish that the search was
truly incidental to the arrest.
The common law power to search incident to an arrest is not unreasonable and does not
violate s. 8 of the Charter if it is consistent, in the circumstances, with the proper
administration of justice. The issue must be whether the inventory search was truly
incidental to the arrest and reasonably performed, and not whether the Charter was
infringed because the police officer could have obtained a warrant. In the context of the
surrounding circumstances, the search of the accused's vehicle was reasonable.
M. (A.) v. Ryan [1997] 1 S.C.R. 157: -- Disclosure -- Counselling records -Victim bringing civil action for damage allegedly caused by defendant's sexual
conduct -- Defendant seeking production of psychiatrist's counselling records and
notes -- Whether documents privileged
1996: October 2; 1997: February 6.
Present: La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.
40
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Evidence -- Disclosure -- Counselling records -- Victim bringing civil action for damage
allegedly caused by defendant's sexual conduct -- Defendant seeking production of
psychiatrist's counselling records and notes -- Whether documents privileged -- Whether
records and notes should be produced -- British Columbia Supreme Court Rules, Rule
26(11).
When the appellant was 17 years old, she underwent psychiatric treatment from the
respondent R. In the course of treatment, R had sexual relations with her. He also
committed acts of gross indecency in her presence. The appellant asserts that this conduct
injured her and has sued R for damages. In order to deal with the difficulties allegedly
caused by the sexual assault and gross indecency as well as other problems, the appellant
sought psychiatric treatment from the respondent P. The appellant was concerned that
communications between her and P should remain confidential, and P assured her that
everything possible would be done to ensure that this was the case. At one point, the
appellant's concerns led P to refrain from taking her usual notes. At the hearing before the
Master of R's motion to obtain disclosure, P agreed to release her reports, but claimed
privilege in relation to her notes. Counsel for the appellant was present. He supported P's
objections to production, but did not assert a formal claim to privilege on behalf of the
appellant. The Master found that P had no privilege in the documents and ordered that
they all be produced to R. The British Columbia Supreme Court affirmed that decision.
P's appeal to the Court of Appeal was allowed in part. The court ordered disclosure of P's
reporting letters and notes recording discussions between her and the appellant. The
disclosure ordered was protected by four conditions: that inspection be confined to R's
solicitors and expert witnesses, and that R himself could not see them; that any person
who saw the documents should not disclose their contents to anyone not entitled to
inspect them; that the documents could be used only for the purposes of the litigation;
and that only one copy of the notes was to be made by R's solicitors, to be passed on as
necessary to R's expert witnesses.
Held (L'Heureux-Dubé J. dissenting): The appeal should be dismissed.
Per La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: The common law
principles underlying the recognition of privilege from disclosure proceed from the
fundamental proposition that everyone owes a general duty to give evidence relevant to
the matter before the court, so that the truth may be ascertained. To this fundamental
duty, the law permits certain exceptions, known as privileges, where it can be shown that
they are required by a public good transcending the normally predominant principle of
utilizing all rational means for ascertaining the truth. The common law permits privilege
in new situations where reason, experience and application of the principles that underlie
the traditional privileges so dictate. It follows that the law of privilege may evolve to
reflect the social and legal realities of our time, including the Canadian Charter of Rights
and Freedoms. The first three conditions for privilege for communications between a
psychiatrist and the victim of a sexual assault are met in this case, since the
communications were confidential, their confidence is essential to the psychiatrist-patient
relationship, and the relationship itself and the treatment it makes possible are of
transcendent public importance. The fourth requirement is that the interests served by
protecting the communications from disclosure outweigh the interest of pursuing the truth
and disposing correctly of the litigation.
41
If the court considering a claim for privilege determines that a particular document or
class of documents must be produced to get at the truth and prevent an unjust result, it
must permit production to the extent required to avoid that result. On the other hand, the
need to get at the truth and avoid injustice does not automatically negate the possibility of
protection from full disclosure. An order for partial privilege will more often be
appropriate in civil cases where, as here, the privacy interest is compelling. Disclosure of
a limited number of documents, editing by the court to remove non-essential material,
and the imposition of conditions on who may see and copy the documents are techniques
which may be used to ensure the highest degree of confidentiality and the least damage to
the protected relationship, while guarding against the injustice of cloaking the truth.
While a test for privilege which permits the court occasionally to reject an otherwise
well-founded claim for privilege in the interests of getting at the truth may not offer
patients a guarantee that communications with their psychiatrists will never be disclosed,
the assurance that disclosure will be ordered only where clearly necessary and then only
to the extent necessary is likely to permit many to avail themselves of psychiatric
counselling when certain disclosure might make them hesitate or decline.
It is open to a judge to conclude that psychiatrist-patient records are privileged in
appropriate circumstances. In order to determine whether privilege should be accorded to
a particular document or class of documents and, if so, what conditions should attach, the
judge must consider the circumstances of the privilege alleged, the documents, and the
case. While it is not essential in a civil case that the judge examine every document, he or
she may do so if necessary to the inquiry. A court, in a case such as this, might well
consider it best to inspect the records individually to the end of weeding out those which
were irrelevant to this defence, but the alternative chosen by the Court of Appeal of
refusing to order production of one group of documents and imposing stringent
conditions on who could see the others and what use could be made of them cannot be
said to be in error and should not be disturbed.
The appellant's alleged failure to assert privilege in the records before the Master does not
deprive her of the right to claim it. If the appellant had privilege in the documents, it
could be lost only by waiver, and the appellant's conduct does not support a finding of
waiver.
Where the doctrine of privilege applies, it displaces any residual discretion which might
otherwise be thought to inhere in favour of the party claiming privilege. A two-step
process which requires a judge to consider first privilege and then a residual discretion
under Rule 26(11) would be redundant and confusing.
Per L'Heureux-Dubé J. (dissenting): Direct disclosure of all of the information shared in
the course of therapy to defence counsel and professionals who are assisting the defence
constitutes a very serious breach of the plaintiff's interests in privacy as regards these
communications. While the plaintiff's privacy interests in the records may receive some
protection under the doctrine of privilege, this is only to the degree they serve the greater
purpose of promoting relationships sufficiently valued by the public. McLachlin J.'s
approach to partial privilege is agreed with, but it cannot displace the residual discretion
to order production of documents in a manner which effects an appropriate balance of the
Charter values engaged in the appeal. The source of this discretion is a common law
discretionary rule governing the exercise of powers established under the B.C. Rules of
Court. Since the appellant has asserted her privacy interest in private records
42
independently of her claim for privilege, it is necessary to determine whether this interest
has received adequate attention.
The traditional common law approach to the power conferred upon the courts to order the
production of documents for discovery in civil proceedings holds that all relevant
documents which are not privileged must be produced. An alternative approach, that
taken by the Court of Appeal in this case, is one which places an outer limit on this
discretion, a limit which ensures that the discovery procedures not work injustice, even
where a claim of privilege has not been successful and it appears that information in the
document is relevant to an issue at trial. The latter approach is more consistent with the
wording of the Rules governing discovery, the origins of the procedure, the common law
discretionary rules governing information regarding non-parties, and the effect of the
Charter on the exercise of common law and statutory discretion in civil proceedings. In
any event, the court must ensure that the approach followed reflects an adequate balance
of the values underlying the Charter.
As the records at issue here are of the same nature as those mentioned in O'Connor, the
appellant has established a reasonable expectation of privacy in the records. Rather than
having waived her right to privacy by instituting an action, the appellant has engaged a
process where her reasonable expectation of privacy must be balanced against the
society's need to ensure that such litigation be conducted fairly and effectively. The
Charter-related value of a fair trial for all litigants, as a fundamental principle of justice,
is also affected in such cases and must be balanced with the privacy interests of the
appellant. The value of equality must further guide the procedure of discovery in tort
cases involving sexual assault.
Given the distinguishing and shared features of the criminal and civil contexts for
production of private records, the following procedure seems the appropriate one in the
context of civil discovery. The party seeking production must notify those with an
interest in the confidentiality of the records. Before a court may order production of
private records to the defence for the purposes of discovery, it must first ascertain what
documents are likely to be relevant to an issue at trial. In civil cases the required
information will be provided by the affidavit of the party seeking the order. The court
must then order production of the likely relevant documents to the court for screening and
removal of any information which the court deems is not likely relevant or otherwise
exempt from production given the balancing of the interests involved. A number of
factors to guide in this evaluation are suggested. A judge may also ask the guardian of the
documents for an inventory of those in his or her possession to assist in the screening
process.
These additional procedures will not confuse trial judges. In many cases, such as the one
before us, the privilege claim will be settled by the judge on the basis of affidavit
evidence. Even where inspection may be required, the fourth branch of the Wigmore test
should be applied to the documents as a whole. Once the privilege claim has been settled,
the judge would then undertake the screening procedures described above to those
documents which are not protected, provided their likely relevance has been established.
Here the Court of Appeal did not review the documents before ordering their production.
By failing to screen private records in such cases, the court creates an impermissible
hierarchy of Charter values, where interests in privacy and equality may be seriously
affected for records or information which may provide very little if any benefit to the
43
defence or be unnecessary to ensure the fairness of proceedings. The decision of the
Court of Appeal should be set aside, except as regards the notes which were not
disclosed, and the matter remitted to the Master for determination in a manner consistent
with these reasons.
V. Privilege for Communications Between Psychiatrist and Patient
1 The first requirement for privilege is that the communications at issue have originated
in a confidence that they will not be disclosed. The Master held that this condition was
not met because both the appellant and Dr. Parfitt had concerns that notwithstanding their
desire for confidentiality, the records might someday be ordered disclosed in the course
of litigation. With respect, I do not agree. The communications were made in confidence.
The appellant stipulated that they should remain confidential and Dr. Parfitt agreed that
she would do everything possible to keep them confidential. The possibility that a court
might order them disclosed at some future date over their objections does not change the
fact that the communications were made in confidence. With the possible exception of
communications falling in the traditional categories, there can never be an absolute
guarantee of confidentiality; there is always the possibility that a court may order
disclosure. Even for documents within the traditional categories, inadvertent disclosure is
always a possibility. If the apprehended possibility of disclosure negated privilege,
privilege would seldom if ever be found.
1 The second requirement -- that the element of confidentiality be essential to the full and
satisfactory maintenance of the relation between the parties to the communication -- is
clearly satisfied in the case at bar. It is not disputed that Dr. Parfitt's practice in general
and her ability to help the appellant in particular required that she hold her discussions
with the appellant in confidence. Dr. Parfitt's evidence establishes that confidentiality is
essential to the continued existence and effectiveness of the therapeutic relations between
a psychiatrist and a patient seeking treatment for the psychiatric harm resulting from
sexual abuse. Once psychiatrist-patient confidentiality is broken and the psychiatrist
becomes involved in the patient's external world, the "frame" of the therapy is broken. At
that point, it is Dr. Parfitt's practice to discontinue psychotherapy with the patient. The
result is both confusing and damaging to the patient. At a time when she would normally
find support in the therapeutic relationship, as during the trial, she finds herself without
support. In the result, the patient's treatment may cease, her distrustfulness be
exacerbated, and her personal and work relations be adversely affected.
1 The appellant too sees confidentiality as essential to her relationship with Dr. Parfitt.
She insisted from the first that her communications to Dr. Parfitt be held in confidence,
suggesting that this was a condition of her entering and continuing treatment. The fact
that she and Dr. Parfitt feared the possibility of court-ordered disclosure at some future
date does not negate the fact that confidentiality was essential "to the full and satisfactory
maintenance" of their relationship.
1 The third requirement -- that the relation must be one which in the opinion of the
community ought to be sedulously fostered -- is equally satisfied. Victims of sexual abuse
often suffer serious trauma, which, left untreated, may mar their entire lives. It is widely
accepted that it is in the interests of the victim and society that such help be obtained. The
mental health of the citizenry, no less than its physical health, is a public good of great
44
importance. Just as it is in the interest of the sexual abuse victim to be restored to full and
healthy functioning, so is it in the interest of the public that she take her place as a
healthy and productive member of society.
1
It may thus be concluded that the first three conditions for privilege for communications
between a psychiatrist and the victim of a sexual assault are met in the case at bar. The
communications were confidential. Their confidence is essential to the psychiatristpatient relationship. The relationship itself and the treatment it makes possible are of
transcendent public importance.
1 The fourth requirement is that the interests served by protecting the communications
from disclosure outweigh the interest of pursuing the truth and disposing correctly of the
litigation. This requires first an assessment of the interests served by protecting the
communications from disclosure. These include injury to the appellant's ongoing
relationship with Dr. Parfitt and her future treatment. They also include the effect that a
finding of no privilege would have on the ability of other persons suffering from similar
trauma to obtain needed treatment and of psychiatrists to provide it. The interests served
by non-disclosure must extend to any effect on society of the failure of individuals to
obtain treatment restoring them to healthy and contributing members of society. Finally,
the interests served by protection from disclosure must include the privacy interest of the
person claiming privilege and inequalities which may be perpetuated by the absence of
protection.
1 As noted, the common law must develop in a way that reflects emerging Charter
values. It follows that the factors balanced under the fourth part of the test for privilege
should be updated to reflect relevant Charter values. One such value is the interest
affirmed by s. 8 of the Charter of each person in privacy. Another is the right of every
person embodied in s. 15 of the Charter to equal treatment and benefit of the law. A rule
of privilege which fails to protect confidential doctor/patient communications in the
context of an action arising out of sexual assault perpetuates the disadvantage felt by
victims of sexual assault, often women. The intimate nature of sexual assault heightens
the privacy concerns of the victim and may increase, if automatic disclosure is the rule,
the difficulty of obtaining redress for the wrong. The victim of a sexual assault is thus
placed in a disadvantaged position as compared with the victim of a different wrong. The
result may be that the victim of sexual assault does not obtain the equal benefit of the law
to which s. 15 of the Charter entitles her. She is doubly victimized, initially by the sexual
assault and later by the price she must pay to claim redress -- redress which in some cases
may be part of her program of therapy. These are factors which may properly be
considered in determining the interests served by an order for protection from disclosure
of confidential patient-psychiatrist communications in sexual assault cases.
1 These criteria, applied to the case at bar, demonstrate a compelling interest in protecting
the communications at issue from disclosure. More, however, is required to establish
privilege. For privilege to exist, it must be shown that the benefit that inures from
privilege, however great it may seem, in fact outweighs the interest in the correct disposal
of the litigation.
1 At this stage, the court considering an application for privilege must balance one
alternative against the other. The exercise is essentially one of common sense and good
judgment. This said, it is important to establish the outer limits of acceptability. I for one
45
cannot accept the proposition that "occasional injustice" should be accepted as the price
of the privilege. It is true that the traditional categories of privilege, cast as they are in
absolute all-or-nothing terms, necessarily run the risk of occasional injustice. But that
does not mean that courts, in invoking new privileges, should lightly condone its
extension. In the words of Scalia J. (dissenting) in Jaffee v. Redmond, 116 S. Ct. 1923
(1996), at p. 1941:
It is no small matter to say that, in some cases, our federal courts will be the tools of
injustice rather than unearth the truth where it is available to be found. The common law
has identified a few instances where that is tolerable. Perhaps Congress may conclude
that it is also tolerable. . . . But that conclusion assuredly does not burst upon the mind
with such clarity that a judgment in favor of suppressing the truth ought to be pronounced
by this honorable Court.
1 It follows that if the court considering a claim for privilege determines that a particular
document or class of documents must be produced to get at the truth and prevent an
unjust verdict, it must permit production to the extent required to avoid that result. On the
other hand, the need to get at the truth and avoid injustice does not automatically negate
the possibility of protection from full disclosure. In some cases, the court may well
decide that the truth permits of nothing less than full production. This said, I would
venture to say that an order for partial privilege will more often be appropriate in civil
cases where, as here, the privacy interest is compelling. Disclosure of a limited number of
documents, editing by the court to remove non-essential material, and the imposition of
conditions on who may see and copy the documents are techniques which may be used to
ensure the highest degree of confidentiality and the least damage to the protected
relationship, while guarding against the injustice of cloaking the truth.
1 In taking this approach, I respectfully decline to follow the all-or-nothing approach
adopted by the majority of the Supreme Court of the United States of endorsing an
absolute privilege for all psychotherapeutic records in Jaffee v. Redmond, supra. The
Court of Appeals in the judgment there appealed from, 51 F.3d 1346 (1995), had held
that the privilege could be denied if "in the interests of justice, the evidentiary need for
the disclosure of the contents of a patient's counseling sessions outweighs that patient's
privacy interests" (p. 1357). The majority in the Supreme Court, per Stevens J., rejected
that approach, stating that to make confidentiality depend upon a trial judge's later
evaluation of the relative importance of the patient's interest in privacy and the
evidentiary need for disclosure would be "little better than no privilege at all" (p. 1932).
1 It must be conceded that a test for privilege which permits the court to occasionally
reject an otherwise well-founded claim for privilege in the interests of getting at the truth
may not offer patients a guarantee that communications with their psychiatrists will never
be disclosed. On the other hand, the assurance that disclosure will be ordered only where
clearly necessary and then only to the extent necessary is likely to permit many to avail
themselves of psychiatric counselling when certain disclosure might make them hesitate
or decline. The facts in this case demonstrate as much. I am reinforced in this view by the
fact, as Scalia J. points out in his dissenting reasons in Jaffee v. Redmond, that of the 50
states and the District of Columbia which have enacted some form of psychotherapist
privilege, none have adopted it in absolute form. All have found it necessary to specify
circumstances in which it will not apply, usually related to the need to get at the truth in
vital situations. Partial privilege, in the views of these legislators, can be effective.
46
1 The view that privilege may exist where the interest in protecting the privacy of the
records is compelling and the threat to proper disposition of the litigation either is not
apparent or can be offset by partial or conditional discovery is consistent with this Court's
view in R. v. O'Connor, [1995] 4 S.C.R. 411. The majority there did not deny that
privilege in psychotherapeutic records may exist in appropriate circumstances. Without
referring directly to privilege, it developed a test for production of third party therapeutic
and other records which balances the competing interests by reference to a number of
factors including the right of the accused to full answer and defence and the right of the
complainant to privacy. Just as justice requires that the accused in a criminal case be
permitted to answer the Crown's case, so justice requires that a defendant in a civil suit be
permitted to answer the plaintiff's case. In deciding whether he or she is entitled to
production of confidential documents, this requirement must be balanced against the
privacy interest of the complainant. This said, the interest in disclosure of a defendant in
a civil suit may be less compelling than the parallel interest of an accused charged with a
crime. The defendant in a civil suit stands to lose money and repute; the accused in a
criminal proceeding stands to lose his or her very liberty. As a consequence, the balance
between the interest in disclosure and the complainant's interest in privacy may be struck
at a different level in the civil and criminal case; documents produced in a criminal case
may not always be producible in a civil case, where the privacy interest of the
complainant may more easily outweigh the defendant's interest in production.
1 My conclusion is that it is open to a judge to conclude that psychiatrist-patient records
are privileged in appropriate circumstances. Once the first three requirements are met and
a compelling prima facie case for protection is established, the focus will be on the
balancing under the fourth head. A document relevant to a defence or claim may be
required to be disclosed, notwithstanding the high interest of the plaintiff in keeping it
confidential. On the other hand, documents of questionable relevance or which contain
information available from other sources may be declared privileged. The result depends
on the balance of the competing interests of disclosure and privacy in each case. It must
be borne in mind that in most cases, the majority of the communications between a
psychiatrist and her patient will have little or no bearing on the case at bar and can safely
be excluded from production. Fishing expeditions are not appropriate where there is a
compelling privacy interest at stake, even at the discovery stage. Finally, where justice
requires that communications be disclosed, the court should consider qualifying the
disclosure by imposing limits aimed at permitting the opponent to have the access justice
requires while preserving the confidential nature of the documents to the greatest degree
possible.
1 It remains to consider the argument that by commencing the proceedings against the
respondent Dr. Ryan, the appellant has forfeited her right to confidentiality. I accept that
a litigant must accept such intrusions upon her privacy as are necessary to enable the
judge or jury to get to the truth and render a just verdict. But I do not accept that by
claiming such damages as the law allows, a litigant grants her opponent a licence to delve
into private aspects of her life which need not be probed for the proper disposition of the
litigation.
47
R. v. Feeney [1997] 2 S.C.R. 13: Search and seizure -- Police looking for
suspect in serious crime -- Police entering home uninvited and without warrant -Whether accused's privacy interest violated -- Canadian Charter of Rights and
Freedoms, s. 8.
Constitutional law -- Charter of Rights -- Admissibility of evidence
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law -- Arrest -- Warrantless arrest occurring at home -- Police entering home
forcibly -- No subjective or objective reason for concluding suspect had committed
indictable offence -- Arrest effected after evidence found -- Conditions required for valid
arrest.
Constitutional law -- Charter of Rights -- Right to counsel -- Caution read on arrest but
no mention made of right to immediate legal counsel or of toll-free telephone to duty
counsel -- Whether accused's rights to immediate legal counsel violated -- Canadian
Charter of Rights and Freedoms, s. 10(b).
Constitutional law -- Charter of Rights -- Search and seizure -- Police looking for suspect
in serious crime -- Police entering home uninvited and without warrant -- Whether
accused's privacy interest violated -- Canadian Charter of Rights and Freedoms, s. 8.
Constitutional law -- Charter of Rights -- Admissibility of evidence -- Statement given by
accused on questioning after caution read but before opportunity to consult legal counsel
given -- Finger prints taken on arrest -- Objects seized from home -- Charter breaches
serious -- Whether admission of evidence bringing administration of justice into
disrepute -- Canadian Charter of Rights and Freedoms, s. 24(2).
The police, during a murder investigation in 1991, entered the accused's house (an
equipment trailer) without permission. When they received no answer at the door, they
entered, roused the accused, touched his leg, ordered him to get up and took him to the
front of the trailer for better lighting. The police arrested him after seeing blood on his
shirt. Following a caution with respect to the right to counsel but not the right to
immediate counsel, the police asked the accused a couple of questions which he
answered. The accused's shirt was seized and he was taken to the police detachment
where, before the accused had consulted with counsel, further statements and the
accused's fingerprints were taken. The police seized cash, cigarettes and shoes under a
warrant obtained on the basis of the initial search of the trailer (the shirt and shoes), the
initial interview (the shoes) and the later interview at the detachment (the cash under the
mattress).
48
The accused was convicted of second degree murder and his appeal was unanimously
dismissed. At issue here are whether the police violated the Charter right to be secure
from unreasonable search or seizure (s. 8) and the right on arrest or detention to retain
and instruct counsel without delay and to be informed of that right (s. 10(b)) in their
investigation of the accused and, if so, what evidence, if any, should be excluded under s.
24(2).
Held (Lamer C.J. and L'Heureux-Dubé, Gonthier and McLachlin JJ. dissenting): The
appeal should be allowed.
Per La Forest, Sopinka, Cory, Iacobucci and Major JJ.: Under the pre-Charter common
law, a warrantless arrest following a forced entry into private premises is legal if: (a) the
officer has reasonable grounds to believe that the person sought is within the premises;
(b) proper announcement is made; (c) the officer believes reasonable grounds for the
arrest exist; and (d) objectively speaking, reasonable and probable grounds for the arrest
exist. Except in exigent circumstances, police should give notice of presence by knocking
or ringing the doorbell, give notice of authority by identifying themselves as law
enforcement police officers and give notice of purpose by stating a lawful reason for
entry. Furthermore, before forcing entry, police should, at minimum, request admission
and have admission denied.
The subjective requirement for arrest was not met and its absence rendered the arrest
unlawful even under the pre-Charter common law. The arresting officer did not believe
he had reasonable grounds to arrest prior to the forcible entry. The police officer's
testimony and the fact that he did not arrest the accused until after he saw the bloodstained shirt support this conclusion. An objective standard cannot be exclusively relied
on because its addition to the requirements for valid arrest at common law did not
displace the subjective requirement. Indeed, it would be inconsistent with the spirit of the
Charter to permit a police officer to make an arrest without a warrant even though he or
she does not believe reasonable grounds for the arrest exist.
The question of whether, objectively speaking, reasonable and probable grounds to arrest
existed prior to the entry into the trailer is open to review by this Court. The trial judge
erred in law by considering an irrelevant factor (the preservation of evidence) and by
failing to explain why the officer in charge was incorrect in his conclusion that grounds
to arrest did not exist prior to entry into the trailer.
The objective test is that a reasonable person, standing in the shoes of the officer, would
have believed that reasonable and probable grounds to make the arrest existed. Any
finding that the subjective test is not met will generally imply that the objective test is not
met, unless the officer is to be considered to have an unreasonably high standard. An
arrest cannot be made solely for the purpose of investigation but, if grounds exist on a
subjective and objective basis, the fact that police intend to continue the investigation and
do so does not invalidate the arrest. The objective test was not met regardless of the
officer's views.
The Landry test for warrantless searches, essentially a balancing between aiding the
police in their protection of society on the one hand and the privacy interests of
individuals in their dwellings on the other, no longer applies. It must be adjusted to
comport with Charter values which, notwithstanding the high value on the security and
privacy of the home at common law, significantly increase the importance of the legal
49
status of the privacy of the home. In general, the privacy interest now outweighs the
interest of the police and warrantless arrests in dwelling houses are prohibited.
Generally a warrant is required to make an arrest in a dwelling house. There are
exceptions with respect to the unreasonableness of warrantless searches for things. A
warrantless search will respect s. 8 if authorized by law, and both the law and the manner
in which the search is conducted are reasonable. In cases of hot pursuit, the privacy
interest must give way to the interest of society in ensuring adequate police protection.
An arrest warrant alone is insufficient protection of the suspect's privacy rights. Even
though the Criminal Code is silent on prior authorization of a search for persons,
warrantless searches for persons are not permissible. Privacy rights under the Charter
demand that the police, in general, obtain prior judicial authorization of entry into the
dwelling house in order to arrest the person. If the Code currently fails to provide
specifically for a warrant containing such prior authorization, such a provision should be
read in. While the absence of such a provision could have a profound influence on the
common law power of arrest, its absence cannot defeat a constitutional right of the
individual. Once a procedure to obtain such prior authorization is created, the concern
that suspects may find permanent sanctuary in a dwelling house disappears.
Warrantless arrests in dwelling houses are in general prohibited. Prior to such an arrest,
the police officer must obtain judicial authorization for the arrest by obtaining a warrant
to enter the dwelling house for the purpose of arrest. Such a warrant will only be
authorized if there are reasonable grounds for the arrest, and reasonable grounds to
believe that the person will be found at the address named, thus providing individuals'
privacy interests in an arrest situation with the protection this Court has required with
respect to searches and seizures. Requiring a warrant prior to arrest avoids the ex post
facto analysis of the reasonableness of an intrusion and invasive arrests without a basis of
reasonable and probable grounds are prevented, rather than remedied after the fact.
The protection of privacy does not end with a warrant; before forcibly entering a dwelling
house to make an arrest with a warrant for an indictable offence, proper announcement
must be made. An exception occurs where there is a case of hot pursuit. Whether or not
there is an exception for exigent circumstances generally has not been fully addressed by
this Court.
The arrest was unlawful both because the requirements for a warrantless arrest under s.
495 of the Code were not met, and, in any event, the police cannot make warrantless
arrests in private dwellings unless exceptional circumstances, which were not present
here, exist. Consequently, the entry into the trailer and the search and seizure of the
accused's clothing violated s. 8 of the Charter.
The requirement that a person be informed of his or her s. 10(b) rights begins upon
detention or arrest. Detention under s. 10 of the Charter occurs when a peace officer
assumes control over the movement of a person by a demand or direction. Here, detention
began once the officer touched the accused's leg and ordered him to get out of bed. The
accused was not given any caution at this time and his s. 10(b) rights were therefore
violated.
The accused was not given adequate opportunity to secure counsel. He was not given
access to a telephone before being questioned; the police gave him the caution in the
trailer, where no telephone existed. The police simply asked him whether he understood
his rights, and given an indication that he did, proceeded to ask him questions about the
50
blood on his shirt and his shoes. These police actions violated the accused's s. 10(b)
rights.
The police came to know about the cash, the cigarettes and the shoes as the result of
violations of ss. 8 and 10(b) of the Charter and would not have had grounds for a warrant
supporting the second search without the violations. Consequently, the search and seizure
under the warrant also violated s. 8. It would be artificial to distinguish the
constitutionality of the second search from that of the initial entry into the trailer.
Fingerprinting as an incident to a lawful arrest has been held not to violate the Charter.
Here, however, the arrest was unlawful and involved a variety of Charter breaches.
Compelling the accused to provide fingerprints in this context was a violation of s. 8 of
the Charter for it involved a search and seizure related to the accused's body for which,
absent a lawful arrest, there is clearly a high expectation of privacy. Procedures that are
taken incidental to and following an unlawful arrest and which impinge on the arrestee's
reasonable expectation of privacy breach s. 8 of the Charter.
The first step in the trial fairness analysis is to consider whether the particular evidence is
conscriptive or non-conscriptive. Evidence will be conscriptive when an accused, in
violation of his or her Charter rights, is compelled to incriminate him- or herself at the
behest of the State by means of a statement, the use of the body or the production of
bodily samples.
The statements in the trailer, at the detachment, and the fingerprints were conscriptive
and therefore inadmissible as affecting the fairness of the trial. The bloody shirt, the
shoes, the cigarettes and the money were not conscriptive evidence, and this evidence,
while its admission would not affect trial fairness, must be analysed in light of the second
and third branches of the Collins test which may require its exclusion.
The violations were very serious in the present case. One of the indicia of seriousness is
whether the violations were undertaken in good faith. One indication of bad faith is that
the Charter violation was undertaken without any lawful authority. In light of a pattern of
disregard for the accused's rights, the seizure of the shirt, shoes, cigarettes and money
was associated with very serious Charter violations. The serious disregard for the
accused's Charter rights suggests that the admission of the evidence would bring greater
harm to the repute of the administration of justice than its exclusion.
Neither of the judgments below should be afforded particular deference with respect to
their s. 24(2) findings. First, neither found a breach with respect to the taking of the
evidence in question and this error in law likely influenced their alternative conclusion
that the breaches, if they existed, were not serious. Second, the trial judge erred in
concluding that the police acted in good faith. Third, the reasons of the trial judge and the
Court of Appeal were so brief and conclusionary that it was difficult to say whether other
errors were made.
Per L'Heureux-Dubé, Gonthier and McLachlin JJ. (dissenting): A warrantless entry is
presumed to be unreasonable and in contravention of s. 8 of the Charter but this
presumption can be rebutted (a) if the search was authorized by law, (b) if the law
authorizing the search was reasonable, and (c) if the manner in which the search was
conducted was reasonable.
The entry was authorized as an incident to a lawful arrest. Four requirements necessary to
effect a lawful arrest on private premises are: (1) the offence must be indictable; (2) the
person who is the subject of the arrest must have committed the offence in question, or
51
the peace officer, on reasonable and probable grounds, must believe that the person has
committed the offence; (3) there must be reasonable and probable grounds for the belief
that the person sought is within the premises; and (4) there must be a proper
announcement before entry. That criteria 1 and 3 were fulfilled was not contested here.
In order to arrest, the officer must have a subjective belief in these reasonable and
probable grounds, and this belief must be justifiable objectively as well. A reasonable
person with the officer's knowledge would have had little difficulty in believing that the
accused had committed the offence in question. The combined effect of the facts in light
of the particular context of this case must be taken into account.
Different standards may apply to rural and urban settings. The trial judge demonstrated
he was sensitive to the nature of the information received, and to the setting in which it
was discovered.
A peace officer, before arresting without a warrant, must possess a subjective belief that
reasonable and probable grounds to arrest exist. The evidence indicates that the officer
held this subjective belief. A police officer seeking to apply this standard should not be
held to the strict exactitude of a lawyer or of a justice swearing out a warrant. The
existence of reasonable and probable grounds is a legal standard and subject to
interpretation and at its core a "common-sense" concept which should incorporate the
experience of the officer.
The police, upon entrance into a private dwelling, do not have to focus solely upon arrest
and can enter, as here, with the subsidiary intention of investigating to either clear or
implicate the suspect. The key element of an arrest is the existence of reasonable and
probable grounds. The police are not obliged to arrest in all situations. On the contrary, it
is perfectly acceptable for the police to enter for the purpose of arrest, while recognizing
that evidence discovered within may well dispel their reasonably held belief. By seeking
to confirm the reasonable belief they held, the police are able to avoid using the more
intrusive procedure (an arrest) by substituting the less intrusive procedure first (the
search). Continuing an investigation after an arrest is made is not improper.
No notice of purpose was given prior to entry. Such a shortcoming is not necessarily fatal
to the arrest. If the ability of the officers to make an announcement is frustrated by the
refusal of the person sought to come to the door, the officers' obligation to provide
complete notice is suspended, and they may enter the premises. The duty to announce
their purpose is re-engaged when it becomes feasible to do so, that is, once they
encounter someone to whom notice can be given. The only effective way to satisfy the
notice requirement here was to suspend its delivery until the accused was in a position to
receive it. The arresting officer informed the accused of his purpose for entry, and
restated his identity the moment it was feasible to do so.
The law permitting warrantless arrests in a dwelling house is reasonable in certain
circumstances. The power of arrest is a crucial part of law enforcement. It is unrealistic to
suggest that the police can never enter private premises without a warrant for the
purposes of arrest. The ability of police to capture persons suspected of criminal activity
and to preserve evidence necessary to convict them would be severely impeded. Further,
hot pursuit is not the only circumstance in which the police are permitted to enter a
dwelling house. Other situations will arise in which the threat to society and the danger of
having important law enforcement aims frustrated will outweigh concerns about privacy.
52
Exigent circumstances have always been held to constitute an exception to the notion that
"a man's home is his castle". A genuine fear that evidence of the crime will be lost can
constitute the necessary exigent circumstances for a warrantless entry. Whether these
exigent circumstances exist is a finding of fact for the trial judge. Here, the trial judge and
the Court of Appeal were of the view that a serious danger existed that evidence would
have been destroyed had the police not immediately entered the trailer to arrest the
accused.
The suggestion that the police could have simply watched the trailer while waiting for a
warrant, failed to recognize the distance and consequent time constraints for obtaining a
warrant here. The nature of the crime is also an important factor to consider. There is a
greater urgency to investigate quickly in a case of violence.
The police lawfully entered the trailer to effect an arrest of the accused; they accordingly
were entitled to search incident to arrest and to seize evidence. The authority to search
incident to arrest is well established at common law and has withstood Charter scrutiny
as well. Similarly, fingerprinting as an incident of a legal arrest does not violate the
Charter.
The warrant was properly obtained, even assuming the original entry was unlawful.
Where a warrant is obtained partially on the strength of tainted evidence, and partially on
evidence which was properly obtained, the role of the court is to consider whether the
warrant would have been issued solely on the strength of the evidence which was
properly obtained. Here, the trial judge ruled that before the officers entered the trailer
and arrested the accused there existed reasonable and probable grounds to believe the
accused was the culprit. This ruling is sufficient to infer that the search warrant could
properly have been issued based solely on the strength of the information which was
obtained prior to the arrest.
Given the finding that the arrest was lawful, ss. 7 and 9 of the Charter were not violated.
The police fulfilled their s. 10(b) obligations. They are not obliged to read an accused his
or her s. 10(b) rights at the moment of arrest or detention. Rather, they must be permitted
the latitude to assess and gain control of the situation and determine whether a potentially
dangerous situation exists. The delay here was minimal. A Charter breach could not be
said to have occurred as the result of this short delay.
Section 10(b) imposes the following duties on law enforcement agents: (1) to inform the
detainee of his or her right to retain and instruct counsel without delay and of the
existence and availability of legal aid and duty counsel; (2) if a detainee has indicated a
desire to exercise this right, to provide the detainee with a reasonable opportunity to
exercise the right (except in urgent and dangerous circumstances); and (3) to refrain from
eliciting evidence from the detainee until he or she had that reasonable opportunity
(again, except in cases of urgency or danger). The second and third duties are
implementational duties and are not triggered unless and until a detainee indicates a
desire to exercise his or her right to counsel. This duty, therefore, does not come into
existence until the detainee asserts it.
It was unnecessary to consider s. 24(2). Had it been necessary, however, excluding this
evidence would clearly bring the administration of justice into disrepute in light of the
exigent circumstances and seriousness of the crime.
Per Lamer C.J. (dissenting): Substantial agreement was expressed with the reasons of
Lambert J.A. in the Court of Appeal. The reasons and conclusion were not to be taken as
53
a disagreement with the principles of R. v. Stillman as expressed in the reasons of
Sopinka J.
Dagg v. Canada (Minister of Finance) [1997] 2 S.C.R. 403: Access to
information -- Privacy -- Personal information -- Request made for sign-in logs of
government department -- Personal identifying features deleted from information
-- Whether information should be disclosed -- Whether part of information can be
withheld because "personal information"
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Access to information -- Privacy -- Personal information -- Request made for sign-in logs
of government department -- Personal identifying features deleted from information -Whether information should be disclosed -- Whether part of information can be withheld
because "personal information" -- Access to Information Act, R.S.C., 1985, c. A-1, ss. 2,
4, 19(1), (2), 21(1)(b), 25, 31, 41, 48, 49, 54 -- Privacy Act, R.S.C., 1985, c. P-21, ss. 2,
3(i), (j), 8(2)(m).
The appellant filed a request with the Department of Finance for copies of logs with the
names, identification numbers and signatures of employees entering and leaving the
workplace on weekends. These logs were kept by security personnel for safety and
security reasons but not for the purpose of verifying overtime claims. The appellant
intended to present this information to the union anticipating that the union would find it
helpful in the collective bargaining process and that the union would as a consequence be
disposed to retain his services. The respondent disclosed the relevant logs but deleted the
employees' names, identification numbers and signatures on the ground that this
information constituted personal information and was thus exempted from disclosure.
The appellant unsuccessfully sought a review by the Minister of this decision and filed a
complaint with the Information Commissioner, arguing that deleted information should
be disclosed by virtue of exceptions related to personal information in the Privacy Act.
The Federal Court, Trial Division, on a review of the Minister's decision, found the
information not to be personal but this decision was reversed on appeal. At issue here is
whether the information in the logs constitutes "personal information" within the
meaning of s. 3 of the Privacy Act and whether the Minister failed to exercise his
discretion properly in refusing to disclose the requested information pursuant to s.
19(2)(c) of the Access to Information Act and s. 8(2)(m)(i) of the Privacy Act.
Held (La Forest, L'Heureux-Dubé, Gonthier and Major JJ. dissenting): The appeal should
be allowed.
Per Lamer C.J. and Sopinka, Cory, McLachlin and Iacobucci JJ.: Agreement was
expressed with La Forest J.'s approach to interpreting the Access to Information Act and
the Privacy Act, particularly that they must be interpreted together. La Forest J.'s general
approach to the interpretation of s. 3 "personal information" (j) of the Privacy Act
(hereinafter s. 3(j)) was also agreed with.
54
The number of hours spent at the workplace is information that is "related to" the position
or function of the individual in that it permits a general assessment to be made of the
amount of work required for a particular employee's position or function. For the same
reason, the requested information is related to the "responsibilities of the position held by
the individual" and falls under the specific exception set out at s. 3(j)(iii) of the Privacy
Act. The information provides a general indication of the extent of the responsibilities
inherent in the position. There is neither a subjective aspect nor an element of evaluation
contained in a record of an individual's presence at the workplace beyond normal
working hours. Rather, that record discloses information generic to the position itself.
Per La Forest, L'Heureux-Dubé, Gonthier and Major JJ. (dissenting): The Access to
Information Act and Privacy Act have equal status and must be given equal effect. The
courts must have regard to the purposes of both in considering whether a government
record constitutes "personal information". Both recognize that, in so far as it is
encompassed by the definition of "personal information" in s. 3 of the Privacy Act,
privacy is paramount over access.
The overarching purpose of access to information legislation is to facilitate democracy by
helping to ensure that citizens have the information required to participate meaningfully
in the democratic process and that politicians and bureaucrats remain accountable to the
citizenry. While the Access to Information Act recognizes a broad right of access to any
record under the control of the government, the overarching purposes of the Act must be
considered in determining whether an exemption to that general right should be granted.
The purpose of the Privacy Act is to protect the privacy of individuals with respect to
personal information about themselves held by a government institution and to provide
individuals with a right of access to that information.
The definition of "personal information" in s. 3 of the Privacy Act -- "information about
an identifiable individual that is recorded in any form including, without restricting the
generality of the foregoing" -- indicates that the general opening words are intended to be
the primary source of interpretation. The subsequent enumeration merely identifies
examples of the type of subject matter encompassed by the general definition. The
language is deliberately broad and entirely consistent with the great pains that have been
taken to safeguard individual liberty. Its intent is to capture any information about a
specific person, subject only to specific exceptions.
In the present case, the information requested by the appellant revealed the times during
which employees of the Department of Finance attended their workplace on weekends
over a period of one month. It is patently apparent that this constitutes "information about
an identifiable individual" within the meaning of s. 3. It thus prima facie constitutes
"personal information" under s. 3 of the Privacy Act.
Although it is not strictly necessary to so find, it is relevant that employees of the
respondent would have a reasonable expectation that the information in the sign-in logs
would not be revealed to the general public. A reasonable person would not expect
strangers to have access to detailed, systematic knowledge of an individual's location
during non-working hours, even if that location is his or her workplace.
Once it is determined that a record falls within the opening words of the definition of
"personal information" in s. 3 of the Privacy Act, it is not necessary to consider whether it
is also encompassed by one of the specific, non-exhaustive examples set out in paras. (a)
to (i). It should be noted, nevertheless, that the records requested by the appellant in this
55
case clearly fall within para. (i), which states that "personal information" includes "the
name of the individual where it appears with other personal information relating to the
individual or where the disclosure of the name itself would reveal information about the
individual". In this case, the appellant did not request only the names of the employees.
He also wanted access to the times of their arrivals and departures. The time entries thus
constitute "other personal information" within the meaning of the first part of para. (i).
It is also clear that disclosure of the names themselves, i.e., without the time entries or
signatures, would disclose information about the individual within the meaning of the
second part of para. (i). In his access request, the appellant asked for copies of the logs
signed by employees on specific days. Even if the Minister disclosed only the names of
the employees listed on those logs, the disclosure would reveal that certain identifiable
persons attended their workplace on those days.
Section 48 of the Access to Information Act places the onus on the government to show
that it is authorized to refuse to disclose a record. The Act makes no distinction between
the determination as to whether a record is prima facie personal information and whether
it is encompassed by one of the exceptions. Even where it has been shown that the record
is prima facie personal information, the government retains the burden of establishing
that a record does not fall within one of the exceptions set out in s. 3.
The section 3 personal information provision exempts information attaching to positions
but not information relating to specific individuals. Information relating to the position is
thus not "personal information", even though it may incidentally reveal something about
named persons. Conversely, information relating primarily to individuals themselves or
to the manner in which they choose to perform the tasks assigned to them is "personal
information". Generally speaking, information relating to the position, function or
responsibilities of an individual will consist of the kind of information disclosed in a job
description.
The information requested in the present case is not information about the nature of a
particular position. While it may give the appellant a rough, overall picture of weekend
work patterns, it provides no specific, accurate information about any specific employee's
duties, functions or hours of work. Rather, it reveals information about the activities of a
specific individual which may or may not be work-related. Even if the logs can be said to
record an employee's overtime hours accurately, such information is "personal
information". The specific hours worked by individual employees reveal nothing about
either the nature or quantity of their work.
The names on the sign-in logs do not constitute a "document prepared by . . .
individual[s] in the course of employment". First, these logs are not prepared by the
employees who sign them; they are the responsibility of security officers. Second, they
are not made "in the course of employment" and have nothing to do with the
responsibilities of their positions.
A de novo review of the decision of the head of the institution, under s. 8(2)(m)(i) of the
Privacy Act, that the public interest in disclosure clearly outweighed any invasion of
privacy is not mandated by s. 2 of the Access to Information Act which provides that
decisions on disclosure should be reviewed independently of government. The reviewing
court, under s. 49 of that Act, is to determine whether the refusal to disclose by the head
of a government institution was authorized. If the information does not fall within one of
the exceptions to a general right of access, the head of the institution is not "authorized"
56
to refuse disclosure, and the court may order that the record be released pursuant to s. 49.
In making this determination, the reviewing court may substitute its opinion for that of
the head of the government institution. The situation changes, however, once it is
determined that the head of the institution is authorized to refuse disclosure. Section 49 of
the Access to Information Act, then, only permits the court to overturn the decision of the
head of the institution where that person is "not authorized" to withhold a record. Where
the requested record constitutes personal information, the head of the institution is
authorized to refuse and the de novo review power set out in s. 49 is exhausted.
The head of a government institution, under s. 19(2) of the Access to Information Act, has
a discretion to disclose personal information in certain circumstances. A decision is not
immune from judicial oversight merely because it is discretionary. Abuse of discretion
may be alleged but where the discretion has been exercised in good faith, and, where
required, in accordance with principles of natural justice, and where reliance has not been
placed upon considerations irrelevant or extraneous to the statutory purpose, the courts
should not interfere.
The Minister properly examined the evidence and carefully weighed the competing
policy interests. He was entitled to make the conclusion that the public interest did not
outweigh the privacy interest. For this Court to overturn this decision would not only
amount to a substitution of its view of the matter for his but also do considerable violence
to the purpose of the legislation. The Minister's failure to give extensive, detailed reasons
for his decision did not work any unfairness upon the appellant.
The head of a government institution, pursuant to s. 48 of the Access to Information Act,
has the burden of establishing that he or she is "authorized to refuse" to disclose a
requested record. The Minister satisfied this burden when he showed that the information
in the sign-in logs constituted "personal information". Once that fact is established, the
Minister's decision to refuse to disclose pursuant to s. 8(2)(m)(i) of the Privacy Act may
only be reviewed on the basis that it constituted an abuse of discretion. The Minister did
not have a "burden" to show that his decision was correct because that decision is not
reviewable by a court on the correctness standard. The Minister weighed the conflicting
interests at stake. The fact that he stated that the appellant failed to demonstrate that the
public interest should override the privacy rights of the employees named in the sign-in
logs was therefore irrelevant.
R. v. Belnavis [1997] 3 S.C.R. 341: Unreasonable search and seizure -- Car
stopped for speeding -- Officer looking for car's documentation and questioning
passenger -- Stolen goods contained in garbage bags found in car -- Driver and
passenger charged with possession of stolen goods -- Whether the driver and
the passenger had reasonable expectation of privacy engaged by the search and
seizure -- If so, whether the evidence should be excluded
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Car
stopped for speeding -- Officer looking for car's documentation and questioning
57
passenger -- Stolen goods contained in garbage bags found in car -- Driver and
passenger charged with possession of stolen goods -- Whether the driver and the
passenger had reasonable expectation of privacy engaged by the search and seizure -- If
so, whether the evidence should be excluded under s. 24(2) of the Charter -- Canadian
Charter of Rights and Freedoms, ss. 8, 24(2).
The police stopped a car for speeding and ran a computer check after the driver
(Belnavis) could produce no documentation. While the computer check was being
processed, the officer returned to the car to look for any pertinent documents. He
questioned the passenger (Lawrence) who had stayed in the car and noticed garbage bags
on the seat crowding her. He found more in the trunk. On inspection, he found they
contained new clothes with price tags. The two women gave differing explanations as to
who owned the bags. They were subsequently charged with possession of stolen property.
The trial judge found the search unreasonable contrary to s. 8 of the Canadian Charter of
Rights and Freedoms, excluded the evidence of the clothing under s. 24(2), and acquitted
the accused. The Court of Appeal quashed the acquittals and ordered new trials. At issue
here was whether the accused had a reasonable expectation of privacy engaged by the
search and seizure, and if so, whether the evidence should be excluded under s. 24(2) of
the Charter.
Held (Iacobucci J. dissenting in part and La Forest J. dissenting): The appeal should be
dismissed.
Per Lamer C.J. and L'Heureux-Dubé, Gonthier, Cory, McLachlin and Major JJ.: The
driver of the car, driving with the apparent permission of the owner, had a reasonable
expectation of privacy in the vehicle. Searching the vehicle without a warrant constituted
a breach of s. 8 of the Charter.
The passenger had no expectation of privacy, either in relation to the vehicle or in
relation to the items seized, and therefore could not claim a violation of her s. 8 rights.
The question as to whether a passenger has a reasonable expectation of privacy in a
vehicle depends upon the totality of the circumstances. All of the relevant facts
surrounding a passenger's presence in the vehicle must be considered. Here the facts
demonstrated that the passenger had no reasonable expectation of privacy in the vehicle.
Her connection to the vehicle was extremely tenuous. She had no control over the vehicle
or access to it and did not demonstrate any relationship with the owner or driver which
would establish some special access to or privilege in regard to the vehicle. No evidence
indicated that she had a subjective expectation of privacy in the vehicle. There may well
be other situations where a passenger could establish a reasonable expectation of privacy
in a vehicle.
The passenger could not demonstrate a reasonable expectation of privacy in the seized
merchandise and therefore had no reasonable expectation of privacy in relation to it. She
did not identify any of the bags as hers and nothing on the exterior of the bags indicated a
connection to her. A garbage bag is very different from a suitcase or kit bag with a name
or initials on it.
The officer had reasonable and probable grounds, both objectively and subjectively, to
search the vehicle. These grounds must inform the assessment of the seriousness of the
Charter breach, when determining whether to admit the evidence under s. 24(2). The
officer properly stopped the speeding vehicle. He had every right to look for documents
pertaining to its ownership or registration, to check it for safety reasons and to speak with
58
the passenger. An objective observer would consider the officer had reasonable and
probable grounds to believe the bags contained stolen goods and to check the trunk for
more.
The transcript indicated that the officer clearly asserted a subjective belief in reasonable
and probable grounds. The trial judge's finding that he did not was unreasonable.
Whether or not the search was based upon reasonable and probable grounds, a
consideration of all the circumstances leads to the conclusion that the evidence of the
clothing should be admitted under s. 24(2) of the Charter. Three sets of factors need to be
considered: the effect of admission on the fairness of the trial, the seriousness of the
Charter breach and the effect of the exclusion of the evidence on the reputation of the
administration of justice. Appellate courts should only intervene with respect to a lower
court's s. 24(2) analysis when that court has made some apparent error as to the
applicable principles or rules of law or has made an unreasonable finding.
Trial fairness was not in issue.
The trial judge's conclusion that the breach was serious could not stand. The degree of the
seriousness of the breach decreases as the expectation of privacy diminishes. The
reasonable expectation of privacy in relation to a car is greatly reduced, in comparison to
that expected of a home or office and it is further reduced when the car belongs to
another. Here, the trial judge failed to take into consideration the totality of the
circumstances. The seriousness of the breach, if any, was diminished by the facts that
there was no ongoing disregard for the accuseds' Charter rights, that there was no
indication that any possible breach was deliberate, wilful or flagrant, and that the officer
acted entirely in good faith. Finally, the presence of reasonable and probable grounds
mitigates the seriousness of the breach. The violation of the accuseds' s. 8 right was little
more than a technical one.
The trial judge did not appear to have turned his mind to society's interest in the effective
prosecution of crime or to the reliability or discoverability of the evidence. The
exclusion, not the inclusion, of the evidence would cause harm to the administration of
justice. The evidence was essential to the prosecution and was entirely reliable.
Per Sopinka J.: The police officer lacked reasonable and probable grounds. This
conclusion, however, did not affect the necessity to resort to s. 24(2) of the Charter
because a s. 8 breach occurred. Notwithstanding reasonable and probable grounds, a
warrantless search violates s. 8, absent a constitutionally valid law authorizing
warrantless searches. The evidence, however, should be admitted for the reasons of
Doherty J.A. in the Court of Appeal. The expectation of privacy in a dwelling is very
different from that expected in a car which can be lawfully stopped by police officers
virtually at random.
Per Iacobucci J. (dissenting in part): The passenger (Lawrence) demonstrated no
expectation of privacy sufficient to ground a claim under s. 8 of the Charter. The trial
judge's conclusions with respect to the driver (Belnavis), however, were not unreasonable
or based upon an error of law and were therefore entitled to appellate deference.
Appellate courts cannot properly review findings of courts below in respect of s. 24(2) of
the Charter and substitute their opinions absent some apparent error of law or a finding
that is unreasonable.
The finding that the officer lacked reasonable and probable grounds to search the vehicle
was not unreasonable. The grounds for the officer's searching activity must be assessed
59
from the point of view of the initial search. The mere presence in the back seat of garbage
bags with new clothing did not constitute objectively reasonable and probable grounds
supporting the search of those bags. Similar observations could be made concerning the
presence of subjective belief in reasonable and probable grounds. Given conflicting
evidence as to subjective belief, an appellate court cannot state with certainty that
subjective belief in reasonable and probable grounds existed or that the trial judge acted
unreasonably in failing to find that it did.
When police do not have sufficient grounds to support a search, they must leave the
suspect alone and not proceed in violation of the Charter to acquire the evidence they
want. This is no less true of a car than a home or office.
The Charter breach was serious, notwithstanding its brief and isolated nature and the
reduced expectation of privacy in the borrowed car. The trial judge was aware of
concerns raised about the seriousness of the breach and his finding the breach to be
serious was consistent with previous authority. He gave adequate consideration to
whether the exclusion of the evidence would bring the administration of justice into
disrepute. Often this factor is mentioned only in passing.
Per La Forest J. (dissenting): The police search of the car and the property of the driver
and its passenger occurred in circumstances that could no doubt be viewed as suspicious
but where the officer had no reasonable and probable grounds to believe those whose
property was searched had committed a criminal offence. The requirement of reasonable
and probable grounds is the minimum requirement for a search.
Taking a drive with one's spouse, friends or anyone else permitted to do so by the owner
or driver is a common and perfectly legitimate activity in a free society and one which the
citizen should generally be left free to pursue in the reasonable expectation that he or she
would be left alone by the police. Both drivers and passengers have an equally reasonable
expectation of privacy, not only as to their persons but also with regard to any goods they
may be carrying in a motor vehicle.
There is less expectation of privacy in an automobile not because a person is less entitled
to privacy but because, for the purposes of regulating and controlling traffic safety in
cars, it is reasonable for the state to seek entry into a car more freely than to the home,
and once there the police may incidentally observe what is illegal. But beyond this, the
individual as such and the privacy he or she has in property brought with him or her is
deserving of as much privacy as if the individual were at home.
The standard advanced by the majority, namely, that the police may search an automobile
when the "totality of circumstances" dictates that it is reasonable to intrude upon a
passenger's expectation of privacy in relation to the property brought by the passenger, is
well below the traditional standard of reasonable and probable grounds. A vague standard
such as this offers almost no protection to the citizen from interference by the police and
also has grave implications for equality in the application of the law. Another reason for
rejecting the "totality of circumstances" test is that it draws distinctions based on the
personal relationships and undermines the fact that s. 8 of the Charter applies to
everyone.
There is agreement with the trial judge that the search of the car and the property of both
the accuseds was unreasonable. The evidence, as against the driver and the passenger,
should be rejected under s. 24(2) of the Charter.
60
Godbout v. Longueuil (City) [1997] 3 S.C.R. 844: Right to privacy -- Residence
requirement -- Municipality adopting resolution requiring all new permanent
employees to reside within its territorial limits -- Whether right to choose where to
establish one's home falls within scope of right to privacy -- Whether residence
requirement infringes employee's right to privacy -- If so, whether infringement
justifiable
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Civil rights -- Right to privacy -- Residence requirement -- Municipality adopting
resolution requiring all new permanent employees to reside within its territorial limits -Whether right to choose where to establish one's home falls within scope of right to
privacy -- Whether residence requirement infringes employee's right to privacy -- If so,
whether infringement justifiable -- Charter of Human Rights and Freedoms, R.S.Q., c. C12, ss. 5, 9.1.
Municipal law -- Resolution -- Residence requirement -- Municipality adopting resolution
requiring all new permanent employees to reside within its territorial limits -- Whether
municipal resolution valid -- Whether residence requirement infringing "right to privacy"
in Quebec Charter and "right to liberty" in Canadian Charter -- Charter of Human
Rights and Freedoms, R.S.Q., c. C-12, ss. 5, 9.1 --Canadian Charter of Rights and
Freedoms, s. 7.
Judgments and orders -- Rectificatory judgment -- Damages -- Court of Appeal ordering
employee reinstated and awarding her damages from time of her dismissal until time of
trial -- Court of Appeal's reasons indicating that no damages were awarded for period
between trial and appeal because they had not been properly quantified -- No holding to
that effect in formal judgment -- Whether Court of Appeal erred in issuing rectificatory
judgment.
Civil procedure -- Appeal -- Court of Appeal ordering employee reinstated and awarding
her damages from time of her dismissal until time of trial -- No damages awarded for
period between trial and appeal because they had not been properly quantified -Whether Court of Appeal erred in not permitting employee to introduce evidence at
appeal hearing in respect of damages between trial and appeal -- Whether Court of
Appeal erred in not requesting parties to submit additional argument on that issue -Whether Court of Appeal erred in not remanding issue of damages to Superior Court -Code of Civil Procedure, R.S.Q., c. C-25, art. 523.
The appellant city adopted a resolution requiring all new permanent employees to reside
within its boundaries. As a condition of obtaining permanent employment as a radio
operator for the city police force, the respondent signed a declaration promising that she
would establish her principal residence in the city and that she would continue to live
there for as long as she remained in the city's employ. The declaration also provided that
if she moved out of the city for any reason, she could be terminated without notice. The
respondent's position became permanent and, approximately one year later, she moved
into a new house she had purchased in a neighbouring municipality. When she refused to
61
move back within the city's limits, her employment was terminated. The Superior Court
dismissed the respondent's action for damages and reinstatement, holding that the city's
residence requirement did not contravene the Quebec Charter of Human Rights and
Freedoms and that the Canadian Charter of Rights and Freedoms did not apply in this
case. The Court of Appeal allowed the respondent's appeal, concluding that the residence
requirement was invalid mainly because it was contrary to public order. It granted the
respondent's request for reinstatement and awarded damages for the financial losses she
suffered from the time of her dismissal until the time of trial. The court noted that the
damages in respect of the income lost by the respondent during the period between the
trial and the appeal ("interim damages") had not been properly quantified and should not
be awarded, but no specific holding to this effect was included in the formal judgment.
The respondent brought a motion for rectification, asking that the court amend its formal
judgment and award the "interim damages". The Court of Appeal granted the motion and
amended the formal judgment, but did not accede to the respondent's request to recover
the "interim damages". The city appealed on the substantive issues, and the respondent
cross-appealed on the damages issue.
Held: The appeal and cross-appeal should be dismissed. The city's residence requirement
unjustifiably infringes s. 5 of the Quebec Charter.
(1) Appeal
Per La Forest, L'Heureux-Dubé and McLachlin JJ.: The ambit of s. 32 of the Canadian
Charter is wide enough to include all entities that are essentially governmental in nature
and is not restricted merely to those that are formally part of the structure of the federal or
provincial governments. As well, under s. 32, particular entities will be subject to Charter
scrutiny in respect of certain governmental activities they perform, even if the entities
themselves cannot accurately be described as "governmental" per se. Since municipalities
cannot but be described as "governmental entities", they are subject to the Canadian
Charter. First, municipal councils are democratically elected by members of the general
public and are accountable to their constituents in a manner analogous to that in which
Parliament and the provincial legislatures are accountable to the electorates they
represent. Second, municipalities possess a general taxing power that, for the purposes of
determining whether they can rightfully be described as "government", is
indistinguishable from the taxing powers of the Parliament or the provinces. Third, and
importantly, municipalities are empowered to make laws, to administer them and to
enforce them within a defined territorial jurisdiction. Finally, and most significantly,
municipalities derive their existence and law-making authority from the provinces. As the
Canadian Charter clearly applies to the provincial legislatures and governments, it must
also apply to entities upon which they confer governmental powers within their authority.
Otherwise, provinces could simply avoid the application of the Charter by devolving
powers on municipal bodies. Further, since a municipality is governmental in nature, all
its activities are subject to Charter review. The Canadian Charter is therefore applicable
to the residence requirement at issue in this case. The particular modality a municipality
chooses to adopt in advancing its policies cannot shield its activities from Charter
scrutiny. All the municipality's powers are derived from statute and all are of a
governmental character. An act performed by an entity that is governmental in nature is
thus necessarily "governmental" and cannot properly be viewed as "private".
62
The right to choose where to establish one's home falls within the scope of the liberty
interest guaranteed by s. 7 of the Canadian Charter. The right to liberty in s. 7 goes
beyond the notion of mere freedom from physical constraint and protects within its scope
a narrow sphere of personal autonomy wherein individuals may make inherently private
choices free from state interference. The autonomy protected by the s. 7 right to liberty,
however, encompasses only those matters that can properly be characterized as
fundamentally or inherently personal such that, by their very nature, they implicate basic
choices going to the core of what it means to enjoy individual dignity and independence.
Choosing where to establish one's home is a quintessentially private decision going to the
very heart of personal or individual autonomy and the state ought not to be permitted to
interfere in this private decision-making process, absent compelling reasons for doing so.
Support for this view is found in the fact that the right to choose where to establish one's
home is afforded explicit protection in the International Convenant on Civil and Political
Rights to which Canada is a party. The respondent's Charter claim did not implicate any
notion of a constitutional "right to employment" or any other "economic right".
The respondent did not waive her right to choose where to establish her home by signing
the residence declaration or by failing to move back within the city's limits. The
respondent had no opportunity to negotiate the mandatory residence stipulation and,
consequently, cannot be taken to have freely given up her right to choose where to live.
Similarly, the respondent's attempt to assert her right to choose where to live by refusing
to conform with the terms of the residence requirement cannot amount to a renunciation
of that right.
Under s. 7, a deprivation by the state of an individual's right to life, liberty or security of
the person will not violate the Canadian Charter unless it contravenes the "principles of
fundamental justice". Deciding whether the infringement of a s. 7 right is fundamentally
just may, in certain cases, require that the right at issue be weighed against the interests
pursued by the state in causing that infringement. This balancing is both eminently
sensible and perfectly consistent with the aim and import of s. 7, since the notion that
individual rights may, in some circumstances, be subordinated to substantial and
compelling collective interests is itself a basic tenet of our legal system lying at or very
near the core of our most deeply rooted juridical convictions. As well, this balancing
process will necessarily be contextual, insofar as the particular right asserted, the extent
of its infringement, and the state interests implicated in each particular case will depend
largely on the facts. Here, the residence requirement infringes the respondent's right to
liberty in a manner that does not conform to the principles of fundamental justice. As
justifications for the requirement, the city relied upon three "public interests": (1) the
maintenance of a high standard of municipal services, (2) the stimulation of local
business and municipal taxation revenue, and (3) the need to ensure that workers
performing essential public services are physically proximate to their place of work. The
first two cannot provide a sufficiently compelling basis upon which to override the
respondent's right to decide where she wishes to live. As for the third one, while in
certain circumstances a municipality might well be justified in imposing a residence
requirement on employees occupying certain essential positions, the residence
requirement at issue is too broad to be upheld on that ground since it applies not only to
employees whose functions require that they be proximate to their place of work, but also
to all permanent employees of the city hired after the municipal resolution was adopted.
63
Moreover, even if the residence requirement were restricted to emergency workers, the
respondent would not fall within that class of employees.
There is no need to examine the violation of s. 7 under s. 1 of the Canadian Charter,
given that all the considerations pertinent to such an inquiry have already been canvassed
in the discussion dealing with fundamental justice. Furthermore, a violation of s. 7 will
normally only be justified under s. 1 in the most exceptional of circumstances, if at all.
Such circumstances do not exist here.
The residence requirement also infringed s. 5 of the Quebec Charter by depriving the
respondent of the ability to choose where to establish her home. Section 5 protects,
among other things, the right to take fundamentally personal decisions free from
unjustified external interference. The scope of decisions falling within the sphere of
autonomy protected by s. 5 is limited to those choices that are of a fundamentally private
or inherently personal nature. The right to be free from unjustified interference in making
the decision as to where to establish and maintain one's home falls squarely within the
scope of the Quebec Charter's guarantee of "respect for [one's] private life". Since the
residence requirement imposed by the city essentially precluded the respondent from
making that choice freely, it violates s. 5. Further, for the reasons given in relation to
waiver under the Canadian Charter, the respondent did not waive her right to privacy
under s. 5 of the Quebec Charter.
Section 9.1 of the Quebec Charter, assuming that it properly applies here, is to be
interpreted and applied in the same manner as s. 1 of the Canadian Charter. Thus, the
party seeking to justify a limitation on a plaintiff's Quebec Charter rights under s. 9.1
must bear the burden of proving both that such a limitation is imposed in furtherance of a
legitimate and substantial objective and that the limitation is proportional to the end
sought, inasmuch as (a) it is rationally connected to that end, and (b) the right is impaired
as little as possible. Essentially for the reasons given in the discussion of fundamental
justice in the context of s. 7 of the Canadian Charter, the first two objectives suggested
by the city as the basis for imposing the residence requirement at issue are not so
significant or pressing as to justify overriding the respondent's s. 5 right. As regards the
third objective, it cannot be concluded that the very broad residence requirement at issue
is either rationally connected to the end sought to be achieved, or that it is proportional to
it. Moreover, the specific evidence advanced by the city in respect of the justifications it
offered was scant and is incapable of permitting the city to discharge its burden of proof.
The infringement of the respondent's s. 5 right is thus not justified under s. 9.1.
Per Gonthier, Cory and Iacobucci JJ.: For the reasons given by La Forest J., the city's
resolution requiring its employees to reside within its boundaries was invalid because it
unjustifiably violated s. 5 of the Quebec Charter. The infringement of s. 5 provides a
good and sufficient basis for dismissing this appeal and there is thus no need to consider
the application of s. 7 of the Canadian Charter. The application of s. 7 may have a
significant effect upon municipalities and, before reaching a conclusion on an issue that
need not be considered in determining the appeal, it would be preferable to hear further
argument with regard to it, including the submissions of interested parties and intervening
Attorneys General.
Per Lamer C.J. and Sopinka and Major JJ.: The city's residence requirement infringes the
respondent's right to privacy under s. 5 of the Quebec Charter and is not justified under s.
9.1. This is sufficient to dispose of the appeal. It is unnecessary and perhaps imprudent to
64
consider whether the residence requirement infringes s. 7 of the Canadian Charter in the
absence of submissions from interested parties.
Section 5 of the Quebec Charter protects an employee's decision where to live as an
aspect of his or her right to privacy. A municipality that seeks to uphold a residence
requirement that infringes that section under s. 9.1 of the Quebec Charter must
demonstrate that the requirement is imposed to advance a legitimate and substantial
objective, and that the requirement is proportional to this objective, in that it is both
rationally connected to the objective and constitutes a minimal impairment of the right
protected by s. 5. These criteria must be applied flexibly and in a manner that is sensitive
to the particular context and factual circumstances of each case. The objectives of
improving the quality of services by fostering loyalty, of supporting the local economy,
and of ensuring that certain essential employees be readily available are often invoked by
municipalities to support a residence requirement. Under s. 9.1, these objectives may,
depending on the circumstances of a case, be sufficiently compelling to justify an
infringement of the employee's right to privacy. In the particular circumstances of this
case, however, none of these objectives were sufficiently compelling to justify such an
infringement.
R. v. Evans [1996] 1 S.C.R. 8: Search and seizure -- Admissibility of evidence
seized -- Police sniffing marijuana at house door -- Arrests made, premises
secured, and search warrant for premises then obtained and executed -Marijuana plants seized -- Whether or not "sniffing" for marijuana at house door a
"search" under s. 8 of Charter -- If so, whether or not that search "reasonable"
Present: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law -- Charter of Rights -- Search and seizure -- Admissibility of evidence
seized -- Police sniffing marijuana at house door -- Arrests made, premises secured, and
search warrant for premises then obtained and executed -- Marijuana plants seized -Whether or not "sniffing" for marijuana at house door a "search" under s. 8 of Charter -If so, whether or not that search "reasonable" -- Whether or not search conducted
pursuant to warrant violating s. 8 -- Whether or not evidence obtained in violation of s. 8
must be excluded pursuant to s. 24(2) -- Canadian Charter of Rights and Freedoms, ss. 8,
24(2).
Plain clothes police officers, during the course of a, to that point, fruitless investigation
occasioned by an anonymous tip, knocked on the appellants' door, identified themselves,
smelled marijuana and immediately arrested the appellants. They secured the premises,
including several marijuana plants. A search warrant was then sought and executed. The
appellants were convicted of possession of marijuana for the purpose of trafficking and
their appeal was dismissed. At issue here was: (1) whether or not the conduct of the
police in "sniffing" for marijuana at the door to the appellants' house constituted a
"search" within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms; (2)
if so, whether or not that search was "reasonable" within the meaning of s. 8; (3) whether
the second search of the house, conducted after a warrant had been obtained, violated s. 8
65
of the Charter; and (4) whether or not any evidence obtained in violation of s. 8 must be
excluded pursuant to s. 24(2).
Held: The appeal should be dismissed.
Per Sopinka, Cory and Iacobucci JJ.: Individuals have a reasonable expectation of
privacy in the approach to their home which is waived for the purpose of facilitating
communication with the public. Where members of the public (including police) exceed
the terms of this waiver, and approach the door for some unauthorized purpose, they
exceed the terms of the implied invitation to knock and approach the door as intruders.
As a result, the police, where they approach a residential dwelling to secure evidence
against the occupant, are engaged in a "search" of the occupant's home. The
constitutional permissibility of such a "search" accordingly depends on whether or not the
search is "reasonable" within the meaning of s. 8 of the Charter.
A warrantless search is presumed to be unreasonable unless the party seeking to justify
the search can rebut this presumption. The presumption was not rebutted here. Although
the police conducted their warrantless search in a reasonable manner, their actions in
approaching the appellants' house and searching for marijuana were not "authorized by
law".
Warrants based solely on information gleaned in violation of the Charter are invalid.
Where, however, the warrant was issued partially on the strength of tainted evidence and
partially on properly obtained evidence, the court must consider whether the warrant
would have been issued absent the improperly obtained evidence. Here, the warrant was
invalid because the only untainted "evidence" supporting it was an unconfirmed
anonymous tip. This tip was clearly insufficient to justify a warrant. As a result, the
search conducted under the warrant was unreasonable within the meaning of s. 8 of the
Charter.
The admission of the impugned evidence would not render the appellants' trial unfair.
The evidence was real evidence that existed irrespective of a Charter violation and the
appellants were in no way conscripted against themselves in creating it. The violation of
s. 8 was not particularly grave and the police acted in good faith. Excluding the evidence
would tarnish the image of the administration of justice much more than admitting it.
Per La Forest J.: Notwithstanding substantial agreement with Sopinka J., the issues were
approached from a different perspective and additional comments were made reflecting
this. Though the illegality here expressly arose out of s. 10 of the Narcotic Control Act,
that would have been so at common law in any event because the courts considered such
a power unreasonable. The sanctity of the home has long constituted a bulwark against
state intrusion. The fact that the manner in which the police conducted themselves was
not otherwise abusive does not alter the basic inconsistency of their act with this
fundamental constitutional principle. Our society simply cannot accept police wandering
about or "sniffing" around our homes. It is for Parliament, not the courts, to make
exceptions to the rule, subject to the courts' power to review whether Parliament's action
is constitutional.
Per Gonthier and Major JJ.: The common law recognizes an implied licence to approach
and knock for a lawful purpose. The residents of the home may refuse permission and
may also explicitly revoke this implied licence. Once lawfully at the door, however,
sensory observations made from the door do not constitute searches within the meaning
66
of s. 8 of the Charter. This conclusion follows both general principles of interpretation
and the established law of search and seizure.
The public's interest in being left alone by government must be balanced against the
government's interest in intruding on the individual's privacy in order to advance its
goals, notably those of law enforcement. This balance must be considered not only in
determining whether or not a search was reasonable, but also at the threshold stage of
determining whether a particular investigative technique used by the police constitutes a
search at all within the meaning of s. 8.
Every investigatory method used by the police constitutes a "search" in some measure.
Section 8, however, only protects individuals against police conduct which violates a
reasonable expectation of privacy. To hold that every police inquiry or question
constitutes a search under s. 8 disregards entirely the public's interest in law enforcement
in favour of an absolute but unrealistic right of privacy of all individuals against any state
incursion however moderate. The police conduct here did not constitute a search within
the meaning of s. 8 of the Charter. The officers properly exercised their implied licence
and merely made observations of what was in plain view at the door.
The officers approached the house openly, in broad daylight, and the appellants retained
choice and control over whether or not to open the door. In exercising that choice, they
took the risk that whoever was standing there would use their senses, in the same way
that choosing to speak to someone is an assumption of the risk that they will repeat what
has been said.
Per L'Heureux-Dubé J.: The reasons and results of Major J. were agreed with. However,
it was not necessary and would be obiter to decide whether state intrusion would
constitute a search of a home in circumstances where the implied licence to knock was
revoked since that was neither an issue nor was it argued.
R. v. Dewald [1996] 1 S.C.R. 68: Unreasonable search and seizure -- Bringing
administration of justice into disrepute -- Admissibility -- Demand for breath
sample not made in accordance with Criminal Code and infringing appellant's
Charter rights -- Admission of evidence obtained as result of infringement not
bringing administration of justice into disrepute
Present: Sopinka, Gonthier, Cory, McLachlin and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Bringing
administration of justice into disrepute -- Admissibility -- Demand for breath sample not
made in accordance with Criminal Code and infringing appellant's Charter rights -Admission of evidence obtained as result of infringement not bringing administration of
justice into disrepute -- Canadian Charter of Rights and Freedoms, s. 24(2) -- Criminal
Code, R.S.C., 1985, c. C-46, s. 254(2).
Evidence -- Admissibility -- Evidence obtained as result of technical Charter breach -Admitting evidence not bringing administration of justice into disrepute.
1SOPINKA J. -- We agree with Arbour J.A. ((1994), 19 O.R. (3d) 704) that the delay in
demanding an ALERT test in this case was not in compliance with s. 254(2) of the
Criminal Code, R.S.C., 1985, c. C-46, as interpreted in this Court's decision in R. v.
67
Bernshaw, [1995] 1 S.C.R. 254. As a result, there occurred a breach of the appellant's
rights under the Canadian Charter of Rights and Freedoms.
2 In the circumstances, the case of Rilling v. The Queen, [1976] 2 S.C.R. 183, has no
application. With respect to s. 24(2), we are of the opinion that in all the circumstances,
the admission of the evidence did not render the trial unfair. The breach of the Charter
was technical and the police officer acted in good faith. The admission of the evidence
would not bring the administration of justice into disrepute.
3 The appeal is dismissed.
R. v. Bernshaw [1995] 1 S.C.R. 254: -- Demand for breath sample -- Roadside
screening test -- Police officer authorized to demand that driver provide breath
sample "forthwith" for screening test -- Whether "fail" result per se provides
reasonable and probable grounds to demand breathalyzer -- Whether officer
must ascertain when driver consumed last drink or wait at least 15 minutes
before administering screening test -- Whether "forthwith" means immediately or
whether it may encompass 15-minute delay
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law -- Motor vehicles -- Demand for breath sample -- Roadside screening test -Police officer authorized to demand that driver provide breath sample "forthwith" for
screening test -- Whether "fail" result per se provides reasonable and probable grounds
to demand breathalyzer -- Whether officer must ascertain when driver consumed last
drink or wait at least 15 minutes before administering screening test -- Whether
"forthwith" means immediately or whether it may encompass 15-minute delay -- Criminal
Code, R.S.C., 1985, c. C-46, s. 254(2), (3).
A police officer pulled the accused's vehicle over after he had noticed it travelling over
the speed limit and drifting from the far side of the shoulder to the centre of the road and
back again with the brake lights flickering. He noticed a smell of liquor coming from the
accused, whose eyes were red and glassy. When asked, the accused admitted that he had
been drinking. The officer then made a demand for a breath sample for an ALERT
roadside screening test pursuant to s. 254(2) of the Criminal Code, which provides that a
police officer may demand that a driver provide a sample of breath "forthwith" when the
officer suspects that the driver has alcohol in the body. The accused complied and the
screening device recorded a "fail" result. The officer stated that when he obtained the fail
reading he formed the opinion that the accused's ability to operate a motor vehicle was
impaired by alcohol. He read him the standard breathalyzer demand and took him to the
police station, where the accused provided two breath samples, both of which were well
over the prescribed limit of .08. At trial an expert witness testified that the presence of
alcohol in the mouth of a person being tested can falsely elevate the reading on a
screening device and give a false result. Thus, police officers were advised to ascertain
when the last drink was consumed and, if they were unable to do so, to wait 15 minutes
before administering the test. The RCMP screening device course manual recommended
a delay of 15 minutes in order to allow mouth alcohol to dissipate. The manufacturer's
68
operation manual recommended waiting 20 minutes before administering the ALERT test
where the subject had recently had a drink, or regurgitated or vomited, to allow any
mouth alcohol to be dispersed. The accused argued that the results of the breathalyzer test
should be excluded on the grounds that the officer did not have the reasonable and
probable grounds required to make the breathalyzer demand because he knew or ought to
have known that the fail result recorded on the screening device might have been
inaccurate due to the presence of mouth alcohol. The trial judge nonetheless admitted the
breathalyzer test results and the accused was convicted of having care and control of a
vehicle with a blood alcohol level of over .08. His summary conviction appeal was
dismissed, but the Court of Appeal set aside the conviction and substituted a verdict of
acquittal.
Held: The appeal should be allowed.
Per La Forest, Sopinka, Gonthier, McLachlin and Major JJ.: Where a police officer
believes on reasonable and probable grounds that a person has committed an offence
pursuant to s. 253 of the Code, the officer may demand a breathalyzer. Section 254(3) of
the Code requires that the police officer subjectively have an honest belief that the
suspect has committed the offence and objectively there must exist reasonable grounds
for this belief. Parliament has set up a statutory scheme whereby a screening test can be
administered by the police merely upon entertaining a reasonable suspicion that alcohol is
in a person's body. A "fail" result may be considered, along with any other indicia of
impairment, in order to provide the police officer with the necessary reasonable and
probable grounds to demand a breathalyzer. A "fail" result per se, however, may not
provide reasonable and probable grounds. Where there is evidence that the police officer
knew that the suspect had recently consumed alcohol and expert evidence shows that the
subsequent screening test would be unreliable due to the presence of alcohol in the
mouth, it cannot be decreed, as a matter of law, that both the subjective and objective
tests have been satisfied. The requirement in s. 254(3) that reasonable and probable
grounds exist is not only a statutory but a constitutional requirement as a precondition to
a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms.
If the scientific evidence establishes a high degree of unreliability when certain
conditions prevail, and if a police officer knows, for example based on his or her training,
that the resultant screening device will provide inaccurate results where a suspect has
consumed alcohol within the 15 minutes prior to administering the test, we cannot, as a
matter of law, tell a police officer that his honest answer as to his belief that there were
no reasonable and probable grounds is wrong.
While the screening test should be administered as soon as possible, the fact that there is
a two-hour limit for the breathalyzer test suggests that a 15-minute delay would not
offend the provision nor the scheme of s. 254 of the Code. The statutory provisions must
allow the time required to take a proper test. Under s. 254(2), the police officer is
specifically entitled to demand a breath sample which enables a proper analysis of the
breath. This flexible approach is in accord with the purpose of the statutory scheme and
ensures that a police officer has an honest belief based on reasonable and probable
grounds prior to making a breathalyzer demand. Waiting 15 minutes is permitted under s.
254(2) of the Code when this is in accordance with the exigencies of the use of the
equipment. It strikes the proper balance between Parliament's objective in combatting the
69
evils of drinking and driving, on the one hand, and the rights of citizens to be free from
unreasonable search and seizure.
While there were several other potential indicia of impairment in this case aside from the
evidence provided by the screening test, the police officer apparently did not form a
belief based on reasonable and probable grounds until after administering the roadside
screening test. Assuming this to be the case, he was entitled to rely on the "fail" result of
the screening test, however, since there was no evidence with respect to the timing of the
accused's last drink. Thus, it is too speculative to assert that the screening device result
was unreliable. Where the particular screening device used has been approved under the
statutory scheme, the officer is entitled to rely on its accuracy unless there is credible
evidence to the contrary.
R. v. Edwards [1996] 1 S.C.R. 128: Unreasonable search and seizure -Evidence -- Admissibility -- Search of apartment of third party -- Real evidence
seized and admitted -- Whether or not accused can challenge admission of
evidence obtained as a result of a search of third party's premises
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Evidence -Admissibility -- Search of apartment of third party -- Real evidence seized and admitted -Whether or not accused can challenge admission of evidence obtained as a result of a
search of third party's premises -- Canadian Charter of Rights and Freedoms, ss. 8,
24(2).
The accused was convicted of possession of drugs for purposes of trafficking. He had
been suspected of drug dealing out of his car using a cellular phone and of keeping the
drugs at his residence or at his girlfriend's apartment. The police arrested him on a traffic
offence. Two officers later called at his girlfriend's apartment and gained her cooperation
through a number of statements, some of which were lies and half-truths -- the evidence
was conflicting as to whether they were made before or after the officers were admitted
to the apartment. Once inside, the accused's girlfriend directed them to the location of a
significant cache of drugs. She was arrested a short time later but the charges against her
were later dropped. At no time prior to being taken into custody was she advised of her
right to refuse entry to the police or of her right to counsel. At the police station, she gave
a statement naming the accused as the person who put the drugs in her apartment. At trial
and on appeal, the accused denied being the owner of the drugs. The accused's appeal
from conviction was dismissed with a dissenting opinion which found a reasonable
expectation of privacy giving rise to the possibility of an infringement of his s. 8 Charter
rights against unreasonable search or seizure. The appeal as of right to this Court was
limited to this issue.
Held: The appeal should be dismissed.
Per Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: Several
principles pertain to the s. 8 right to be secure against unreasonable search or seizure. A
claim for relief under s. 24(2) of the Charter can only be made by the person whose
Charter rights have been infringed. Like all Charter rights, s. 8 is a personal right. It
70
protects people and not places. The right to challenge the legality of a search depends
upon whether the accused had a reasonable expectation of privacy, and if so, whether the
search by the police was conducted reasonably. A reasonable expectation of privacy is to
be determined on the basis of the totality of the circumstances. The factors to be
considered may include: (i) presence at the time of the search; (ii) possession or control
of the property or place searched; (iii) ownership of the property or place; (iv) historical
use of the property or item; (v) the ability to regulate access; (vi) the existence of a
subjective expectation of privacy; and (vii) the objective reasonableness of the
expectation. If an accused person establishes a reasonable expectation of privacy, the
inquiry must proceed to the second stage to determine whether the search was conducted
in a reasonable manner.
The accused had no privacy interest in the goods seized as he had denied that the drugs
were his. He demonstrated no expectation of privacy in his girlfriend's apartment which
was the only other relevant privacy interest. His girlfriend described him as "just a
visitor" who stayed over occasionally. He contributed nothing to the rent or household
expenses and had no authority to regulate access to the premises.
The police conduct did not affect a personal right of the accused. It was accordingly not
necessary to consider whether the accused could contest the admissibility of the evidence
pursuant to s. 24(2) of the Charter or whether the accused's girlfriend did in fact consent
to the search of her apartment.
The reasonable expectation of privacy concept has worked well in Canada. It has proved
to be reasonable, flexible, and viable and should not be abandoned in favour of the
discredited rule of automatic standing.
R. v. Clement [1996] 2 S.C.R. 289: -- Police searching accused's car -Evidence supporting trial judge's finding that accused gave his consent to the
search freely and voluntarily -- No infringement of accused's right to be secure
against unreasonable search and seizure
Present: La Forest, Sopinka, Gonthier, Cory and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Search and seizure -- Police searching accused's
car -- Evidence supporting trial judge's finding that accused gave his consent to the
search freely and voluntarily -- No infringement of accused's right to be secure against
unreasonable search and seizure -- Canadian Charter of Rights and Freedoms, s. 8.
APPEAL from a judgment of the Ontario Court of Appeal (1995), 25 O.R. (3d) 230, 83
O.A.C. 226, 100 C.C.C. (3d) 103, 31 C.R.R. (2d) 17, 42 C.R. (4th) 40, dismissing the
accused's appeal from his conviction on charges of robbery, using a firearm to commit an
indictable offence and being masked with intent to commit an indictable offence. Appeal
dismissed.
71
CORY J. -- There was cogent evidence to support the trial judge's finding that the
appellant consented to the search of his car before he was detained. The appellant
testified that he knew that the police had no right to search his car. It is apparent that he
gave his consent freely and voluntarily. It follows that the search thus consented to did
not infringe s. 8 of the Charter. The appeal is therefore dismissed.
R. v. Goldhart [1996] 2 S.C.R. 463: Admissibility of evidence --Accused
arrested on premises searched pursuant to invalid search warrant --Marijuana
seized but excluded from evidence -- Person arrested with accused pleading
guilty in prior trial and testifying for Crown at accused's trial -- Whether witness'
evidence obtained in a manner that breached the Charter -- If so, whether its
admission would bring the administration of justice into disrepute -- Whether a
temporal connection existed between the witness' evidence and the Charter
breach and whether any causal connection with the Charter breach was too
remote
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Admissibility of evidence --Accused arrested
on premises searched pursuant to invalid search warrant --Marijuana seized but excluded
from evidence -- Person arrested with accused pleading guilty in prior trial and testifying
for Crown at accused's trial -- Whether witness' evidence obtained in a manner that
breached the Charter -- If so, whether its admission would bring the administration of
justice into disrepute -- Whether a temporal connection existed between the witness'
evidence and the Charter breach and whether any causal connection with the Charter
breach was too remote -- Canadian Charter of Rights and Freedoms, ss. 8, 24(2).
The accused was convicted of possession and cultivation of narcotics for his involvement
in a marijuana-growing operation. The police, acting on a tip, had conducted a perimeter
search of the suspected premises, smelled marijuana and on that basis obtained a search
warrant. The ensuing search resulted in the seizure of a large quantity of marijuana and a
key. The key was admitted into evidence without objection but the marijuana was not
because the search was found to be unreasonable contrary to s. 8 of the Canadian Charter
of Rights and Freedoms. The accused, nevertheless, was convicted on the basis of the
viva voce evidence of a witness who had been arrested with the accused and who had
earlier pleaded guilty. The accused's convictions were overturned on appeal. The Court of
Appeal excluded this evidence under s. 24(2) of the Charter because its admission would
bring the administration of justice into disrepute. The Crown conceded before this Court
that the search was unreasonable contrary to s. 8 of the Charter. At issue here was
whether the viva voce evidence was obtained in a manner that violated the Charter so as
to attract the provisions of s. 24(2) and, if so, whether its admission would bring the
administration of justice into disrepute. In particular, it had to be decided if a temporal
72
connection existed between the viva voce evidence and the Charter breach and whether
any causal connection with the Charter breach was too remote.
Held (La Forest J. dissenting): The appeal should be allowed.
Per Lamer C.J. and L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci
and Major JJ.: In view of the conclusion that the viva voce evidence of the witness was
not obtained in a manner that violates the Charter, it was unnecessary to consider whether
the admission of the evidence would bring the administration of justice into disrepute.
Causation was rejected in earlier jurisprudence as the sole touchstone of the
application of s. 24(2) of the Charter because of the pitfalls that are inherent in the
concept. The concepts of proximate cause and remoteness were developed to inject some
degree of restraint on the potential reach of causation. Although Therens and Strachan
warned against over-reliance on causation and advocated an examination of the entire
relationship between the Charter breach and the impugned evidence, causation has not
entirely been discarded. Accordingly, while a temporal link will often suffice, it is not
always determinative. It will not be determinative if the connection between the securing
of the evidence and the breach is remote (meaning that the connection is tenuous). Since
the concept of remoteness relates not only to the temporal connection but also to the
causal connection, the mere presence of a temporal link is not necessarily sufficient.
Given that the whole of the relationship between the breach and the evidence must be
examined, the court can appropriately consider the strength of the causal relationship. If
both the temporal connection and the causal connection are tenuous, the court may very
well conclude that the evidence was not obtained in a manner that infringes a right or
freedom under the Charter. On the other hand, the temporal connection may be so strong
that the Charter breach is an integral part of a single transaction. In that case, a causal
connection that is weak or even absent will be of no importance. Once the principles of
law are defined, the strength of the connection between the evidence obtained and the
Charter breach is a question of fact. Accordingly, the applicability of s. 24(2) will be
decided on a case-by-case basis.
The viva voce evidence was alleged to have been obtained in a manner that breached
the Charter. A distinction must be made between discovery of a person who is arrested
and charged with an offence and the evidence subsequently volunteered by that person.
The discovery of the person cannot simply be equated with securing evidence from that
person which is favourable to the Crown. The prosecution has no assurance that the
person will provide any information let alone sworn testimony that is favourable to the
Crown. That testimony cannot be treated in the same manner as an inanimate object.
Here, to find a temporal link the pertinent event is the witness' decision to cooperate
with the Crown and testify and not his arrest. Indeed the existence of a temporal link
between the illegal search and the witness' arrest is of virtually no consequence.
Moreover, any temporal link between the illegal search and the testimony is greatly
weakened by intervening events of the witness' voluntary decision to cooperate with the
police, to plead guilty and to testify. The application of the causal connection factor is to
73
the same effect. The connection between the illegal search and the witness' decision to
give evidence is extremely tenuous. Given the entire chain of events, the nexus between
the impugned evidence and the Charter breach is remote.
The viva voce evidence was therefore admissible. With respect to the key, this issue
was not raised at trial and was not referred to by the Court of Appeal. The Court should
not exercise its discretion to allow the issue to be raised.
Per La Forest J. (dissenting): Two requirements must be established for the exclusion
of evidence under s. 24(2): that the evidence was obtained in a manner that infringed or
denied a right or freedom guaranteed by the Charter, and that, having regard to all the
circumstances, the admission of the evidence would bring the administration of justice
into disrepute.
In relation to the first requirement, it was agreed that a strict causal connection has
been rejected by this Court. However, previous authority establishes that a causal
connection will be sufficient to establish that the evidence was obtained in a manner that
infringed a right or freedom guaranteed by the Charter. This authority also establishes
that where a causal connection exists between the Charter violation and the impugned
evidence, the issue of whether the admission of this evidence would bring the
administration of justice into disrepute must be determined by weighing the contextual
factors set forth in the test developed for considering this issue. This test is bypassed in
the majority reasons, given the finding there that a causal connection will not necessarily
satisfy the first requirement.
A movement away from a strict requirement of a causal connection was born out of a
concern that a requirement of causality may present an insurmountable obstacle to
applicants seeking to have evidence excluded pursuant to s. 24(2) of the Charter. A
causation requirement was felt to lead to a narrow view of the relationship between the
Charter violation and the discovery of evidence. Thus, in determining whether evidence
was obtained in a manner that infringed the Charter, a generous approach should be
maintained, leaving the presence and strength of a causal connection to be considered as
a factor in relation to whether the admission of the evidence would bring the
administration of justice into disrepute.
The trial judge made a finding of a causal connection which was logically supported
by the facts. Had the officers not uncovered any information pursuant to the illegal
search, they would not have continued the investigation. The facts revealed that contact
with the witness would not likely have occurred without the illegal search. Despite the
trial judge's finding that the evidence in question arose out of an exercise of the witness'
own free will, this exercise of free will cannot be viewed separately from his arrest. Any
independent decision to testify undertaken by the witness after his arrest was necessarily
affected by the arrest. Accordingly, having regard to the chain of events surrounding the
obtaining of the witness' testimony, there is a sufficient connection to establish that the
evidence was obtained in breach of the Charter.
74
The importation of American jurisprudence into the analysis under s. 24(2), without
an awareness of the context, should be done with caution. Given the more flexible
approach under the Charter, the American distinction between testimony and inanimate
objects should not be adopted. Failing to follow the established mechanism of s. 24(2) for
determining whether evidence would bring the administration of justice into disrepute in
respect of certain types of evidence leads to a fractured system.
The reasons of the majority of the Court of Appeal were relied on with respect to the
issue of whether the admission of the evidence would bring the administration of justice
into disrepute.
R. v. Knox [1996] 3 S.C.R. 1996: -- Blood test -- Consent -- Demand for blood
test made of suspected impaired driver -- Standard demand not mentioning
requirements that assurances be made that the blood samples will only be taken
by a qualified medical practitioner and that taking the samples would neither
harm the suspect's health nor endanger the suspect's life -- Whether the driver's
consent was an essential element to be proved by the Crown in obtaining the
driver's blood sample
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Gonthier, Cory, McLachlin and
Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Criminal law -- Blood test -- Consent -- Demand for blood test made of suspected
impaired driver -- Standard demand not mentioning requirements that assurances be
made that the blood samples will only be taken by a qualified medical practitioner and
that taking the samples would neither harm the suspect's health nor endanger the
suspect's life -- Whether the driver's consent was an essential element to be proved by the
Crown in obtaining the driver's blood sample pursuant to s. 254(3) of the Criminal Code
-- Whether blood sample demand, absent the assurances, complied with the requirements
of s. 254(4) of the Code -- If not, what were the ramifications? --Canadian Charter of
Rights and Freedoms, ss. 7, 8, 24(2) -- Criminal Code, R.S.C., 1985, c. C-46, ss. 253(b),
254(3), (4), (5), 255(1), (2), 691(2)(a).
The police officer in charge of the situation following a serious traffic accident formed
the opinion that the accused was impaired and demanded, pursuant to s. 254(3) of the
Criminal Code, that he provide a blood sample. (The accused was at hospital and the
nearest breathalyzer machine was some distance away.) The standard demand, which was
read to the accused from a printed card, made no mention of the s. 254(4) requirements
(detailed in R. v. Green) that assurances be made that the blood samples would only be
taken by a qualified medical practitioner who was satisfied that taking the samples would
neither harm the suspect's health nor endanger the suspect's life. Having found that the
accused did not give his consent to the taking of the blood sample, the trial judge
excluded the blood alcohol evidence. He subsequently acquitted the accused of two
counts of causing bodily harm as a result of operating a motor vehicle while impaired
(contrary to s. 255(2) of the Code) and one count of driving with an alcohol level above
the legal limit (contrary to s. 255(1)). The Court of Appeal reversed the acquittals and
75
ordered a new trial. This appeal, accordingly, is of right. At issue here is: (1) whether the
accused's consent was an essential element to be proved by the Crown in obtaining the
accused's blood sample pursuant to s. 254(3) of the Code; and (2) whether the standard
blood sample demand read here met the requirements of s. 254(4), and if not, what were
the ramifications.
Held: The appeal should be dismissed.
The Crown is not required to prove the consent of the accused to the giving of a blood
sample under s. 254(3) of the Code. This provision is mandatory not consensual. A
person to whom a demand is made is "required to provide" a blood sample and anyone
who "refuses to comply" with a blood sample demand commits a separate offence (s.
254(5)). The distinction between the meaning of "compliance" and the meaning of
"consent" is real. To consent means to agree and to cooperate and connotes a decision to
allow the police to do something which they could not otherwise do. Compliance has a
more subtle meaning involving the failure to object. Acquiescence and compliance signal
only a failure to object; they do not constitute consent. The current standard merely
requires the Crown to establish that there were reasonable and probable grounds to
believe that the accused had committed the offence of impaired driving, that it was
impracticable to obtain a breathalyzer sample, and that a demand to obtain a blood
sample was made. However, a person cannot be forced, physically or otherwise, to
submit to a blood sample. Moreover, compliance can be vitiated by certain circumstances
such as those involving trickery.
The standard demand form read here was deficient in that it did not make the s. 254(4)
assurances that the blood samples would only be taken by a qualified medical practitioner
who was satisfied that taking the samples would neither harm the suspect's health nor
endanger the suspect's life. The taking of the sample absent these assurances would
contravene ss. 7 and 8 of the Canadian Charter of Rights and Freedoms. If a demand is
not validly made in this manner, the accused cannot be convicted under s. 254(5) for
having failed to comply with this demand.
The principles in Green apply where a blood sample has actually been obtained. The
logic of s. 254(4) of the Code is concerned with the adequacy of the demand itself, and
not with whether the accused actually complied with the request. The integrity of the
blood sample regime requires the police to deliver a valid demand with the s. 254(4)
assurances even if the accused would have complied with the demand in the absence of
the medical assurances.
The issue to be addressed given a Charter violation is whether the admission of the blood
sample results could "bring the administration of justice into disrepute" under s. 24(2) of
the Charter. The order for a new trial was appropriate since this determination should be
left for the trial court. However, a significant distinction between compliance and refusal
exists when applying s. 24(2) of the Charter. If an accused actually complies with a
blood sample demand, in the absence of the medical assurances of s. 254(4), adducing the
evidence of the blood sample is unlikely to "bring the administration of justice into
disrepute". This is particularly true when the conditions stipulated by the provision were
in fact met. The administration of justice is not harmed by the deficient demand when an
accused actually complies under these circumstances because a proper demand under s.
254(4) would only serve to further encourage compliance.
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R. v. Jacques [1996] 3 S.C.R. 312: Police officer stopping and searching
appellants' truck several kilometres from Canada-U.S. border after receiving
report that a vehicle had crossed at uncontrolled point of entry -- Report
containing no description of vehicle or passengers -- Customs Act authorizing
stop and search of vehicle where officer suspects on reasonable grounds that
vehicle is or might be involved in smuggling -- Whether officer had reasonable
grounds to stop appellants -- Whether appellants subjected to unreasonable
search or seizure
Present: Sopinka, Gonthier, Cory, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK
Constitutional law -- Charter of Rights -- Search or seizure -- Police officer stopping and
searching appellants' truck several kilometres from Canada-U.S. border after receiving
report that a vehicle had crossed at uncontrolled point of entry -- Report containing no
description of vehicle or passengers -- Customs Act authorizing stop and search of
vehicle where officer suspects on reasonable grounds that vehicle is or might be involved
in smuggling -- Whether officer had reasonable grounds to stop appellants -- Whether
appellants subjected to unreasonable search or seizure -- Canadian Charter of Rights
and Freedoms, s. 8 -- Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), s. 99(1)(f).
Constitutional law -- Charter of Rights -- Arbitrary detention -- Police officer stopping
and searching appellants' truck several kilometres from Canada-U.S. border after
receiving report that a vehicle had crossed at uncontrolled point of entry -- Report
containing no description of vehicle or passengers -- Customs Act authorizing stop and
search of vehicle where officer suspects on reasonable grounds that vehicle is or might
be involved in smuggling -- Whether officer had reasonable grounds to stop appellants -Whether appellants arbitrarily detained -- Canadian Charter of Rights and Freedoms, s.
9 -- Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), s. 99(1)(f).
An RCMP officer received a radio report from the U.S. border patrol informing him that
a single vehicle had crossed the Canada-U.S. border at a nearby uncontrolled point of
entry. No description of the vehicle or of its passengers, contents or licence plates was
given. The officer proceeded to the intersection of the road from the border and the
Trans-Canada highway. He testified that it would take approximately three minutes to
drive from the border to the intersection, a distance of some four to five kilometres, and
that it took him three to five minutes to drive from where he received the radio report to
the intersection. When he arrived he noticed two vehicles waiting. The first in line was a
car with New Brunswick licence plates, driven by a woman approximately 60 years old.
The second vehicle was a pickup truck, with a Quebec licence plate in the rear, a cellular
phone antenna, and a cap on the back. This vehicle, which was occupied by the
appellants, was stopped by the officer, who stated at trial that he had a choice between the
two vehicles and picked the one he felt was more suspicious. When asked where he had
been, the driver replied, "I'm coming from across". He was then asked what he had in the
back of the vehicle, and replied that it was whisky. On request, he opened the back of the
truck and the officer noted several Wal-Mart bags and some boxes with liquor markings
on them. The officer then placed the appellants under arrest and confiscated their truck.
77
The appellants were charged with failing to report to customs and smuggling. The trial
judge found that since the stopping of the appellants' vehicle was based on the officer's
hunch, which was insufficient to constitute reasonable grounds, it was arbitrary, and thus
a violation of s. 9 of the Canadian Charter of Rights and Freedoms. He also held that the
statements by the driver and the subsequent consent to search the vehicle were given in
violation of the Charter and the evidence gathered thereafter was inadmissible pursuant
to s. 24(2) of the Charter. The Crown called no further evidence and the appellants were
acquitted. The Court of Appeal found that the stopping of the appellants' vehicle was
permitted under s. 99(1)(f) of the Customs Act, concluding that the officer had reasonable
grounds to suspect a contravention of the Act because the truck was on the road leading
from the border and did not fit into the surroundings. It set aside the acquittals and
ordered new trials.
Held (Sopinka and Major JJ. dissenting): The appeal should be dismissed.
Per Gonthier, Cory and Iacobucci JJ.: Having failed to refer explicitly to s. 99(1)(f) of the
Customs Act, the trial judge further erred by overstating the necessary grounds for the
officer's actions. Section 99(1)(f) authorized the detention and search of the appellants'
vehicle on the basis of reasonable suspicion of smuggling or an attempt thereto, but the
trial judge referred to a probability of illegal smuggling. In assessing the officer's actions,
the trial judge also adopted a dissecting approach to evidence when, instead, he should
have measured the totality of the circumstances. Since the precise and reliable
information relayed to the officer, the location of the appellants' vehicle and his
observations of it amply satisfied the requirements for detention and search under s.
99(1)(f) of the Act, the appellants were not arbitrarily detained contrary to s. 9 of the
Charter. The appellants' right to be secure against unreasonable search and seizure was
also not violated. The search carried out met the criteria set out in Collins: it was
authorized by law, that law is itself reasonable, and the search was carried out in a
reasonable manner. The Crown's failure to adduce further evidence after the adverse voir
dire ruling, thereby necessitating an acquittal, falls far short of an abuse of process. The
ruling rendered virtually meaningless any other evidence which the Crown might have
been in a position to call. Since it would be absurd to expect the Crown to have
proceeded with the trial in those circumstances, its failure to do so does not affect the
availability of a new trial. A new trial is warranted here. The excluded evidence, together
with the evidence already of record, constitutes circumstantial evidence such that, had the
error not occurred and the excluded evidence been allowed, the verdict would not
necessarily have been the same.
Per Major J. (dissenting): The trial judge was correct in finding that the officer did not
have reasonable grounds to stop the appellants. While the requirements of s. 99(1)(f) of
the Customs Act are not stringent, there must be some connection between the factors
relied on by the officer and the suspected breach of the Act. Here the appellants' vehicle
was stopped, according to the officer, because of its proximity to the border, and the fact
that it was a truck with a cellular telephone antenna and a cap on the back. The officer
also thought the fact that the vehicle bore a Quebec licence plate was an important
consideration. These factors, assessed individually or in concert, do not constitute
reasonable grounds to suspect a contravention of the Act. The arbitrary nature of the stop
is evidenced by the officer's testimony; he testified twice that he had a choice between the
two vehicles found at the intersection, and that he had to stop one or the other. He never
78
explained why the truck was the more likely of the two vehicles to have crossed the
border. There is nothing illegal per se about crossing the border at an uncontrolled
checkpoint. Even if the truck could have been identified as the vehicle which had just
crossed the border, there was still nothing to indicate that a violation of the Customs Act
had occurred. The officer acted on a hunch based on his experience. While experience
should not be discounted in evaluating grounds to stop and search a vehicle, allowing
police to exercise their considerable powers of detention and arrest based on their
experience has the potential to permit ex post facto justification of police action. In
assessing the officer's experience it should not be overlooked that he believed crossing
the border at an uncontrolled border crossing was illegal, which it is not. Because there
were no reasonable grounds for the detention of the appellants in this case, they were
arbitrarily detained, in contravention of s. 9 of the Charter. In addition, the subsequent
search was unreasonable and violated s. 8. Finally, the trial judge did not make an error
as to the applicable principles of law governing the exclusion of evidence under s. 24(2),
nor was his finding that the admission of the evidence would render the trial unfair
unreasonable.
Sopinka J.'s reasons were agreed with.
Per Sopinka J. (dissenting): Major J.'s conclusion and reasons were agreed with.
However, even if the trial judge erred in excluding the evidence produced by the search
of the appellants' vehicle, the appeal should be allowed. In an appeal from an acquittal at
trial based on an error of law, the Crown has the duty of satisfying the court that the
verdict would not necessarily have been the same if the error had not occurred. In order
to satisfy this burden, which is a heavy one, the Crown must show that either the
excluded evidence or the excluded evidence together with other evidence could
reasonably result in a conviction. The court must be persuaded of this to a reasonable
degree of certainty. Here, the evidence of the search is the only evidence in the record.
This evidence itself could not result in a conviction. The appellants were stopped just
minutes after they crossed the border, and as there were no customs offices on the road
they were on, it would have been impossible for them to have reported to a customs
office before they were stopped.
R. v. Keshane [1996] 3 S.C.R. 413: Admissibility of evidence -- Accused
charged with possession of marijuana for purpose of trafficking – Trial judge
finding that warrantless search of accused's car violated s. 8 of Canadian Charter
of Rights and Freedoms -- Trial judge excluding marijuana found by police from
evidence -- Court of Appeal correct in directing that evidence be admitted
Present: Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Constitutional law -- Charter of Rights -- Admissibility of evidence -- Accused
charged with possession of marijuana for purpose of trafficking – Trial judge finding that
warrantless search of accused's car violated s. 8 of Canadian Charter of Rights and
Freedoms -- Trial judge excluding marijuana found by police from evidence -- Court of
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Appeal correct in directing that evidence be admitted -- Canadian Charter of Rights and
Freedoms, s. 24(2).
APPEAL from a judgment of the Saskatchewan Court of Appeal (1995), 134 Sask. R.
314, 101 W.A.C. 314, allowing the Crown's appeal from the accused's acquittal on a
charge of possession of marijuana for the purpose of trafficking and entering a
conviction. Appeal allowed and new trial ordered.
1CORY J. -- Assuming without deciding that there was an infringement of s. 8 of the
Charter in this case, we are nonetheless all of the view that the evidence obtained as a
result of the search was admissible pursuant to s. 24(2). It was real evidence that existed
prior to the search. It was not elicited as a result of the compelled assistance of the
accused. There was no bad faith demonstrated by the police. If there was a breach of s. 8
it could not be termed either flagrant or serious. The evidence discovered in the search
was essential to prove the commission of a serious offence. It follows that the Court of
Appeal was correct in setting aside the acquittal by the trial judge and in directing that the
evidence be admitted.
2
However the appellant did not have the opportunity to put forward a defence. There
must therefore be a new trial with the evidence obtained in the search admitted. The
order of the Court of Appeal is therefore varied to provide that a new trial is directed.
R. v. Garofoli [1990] 2 S.C.R. 1421: Interception of private communications -Judge failing to include minimization clause in wiretap authorizations -- Whether
authorizations violate s. 8 of Canadian Charter -- Grounds for challenging
authorizations and appropriate remedies -- Protection of identity of informers -Admissibility of evidence
Present: Dickson C.J. 1 and Lamer C.J. 2 and La Forest, L'Heureux-Dubé, Sopinka,
Gonthier and McLachlin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Criminal law -- Interception of private communications -- Access to sealed packet -Validity of wiretap authorizations -- Grounds for challenging authorizations and
appropriate remedies -- Protection of identity of informers -- Editing of affidavits -Entitlement of accused to cross-examine on affidavits -- Criminal Code, R.S.C. 1970, c.
C-34, Part IV.1.
Criminal law -- Interception of private communications -- Admissibility of evidence -Relationship between s. 178.16 of Criminal Code and s. 24(2) of Canadian Charter of
Rights and Freedoms.
80
Constitutional law -- Charter of Rights -- Unreasonable search and seizure -Interception of private communications -- Judge failing to include minimization
clause in wiretap authorizations -- Whether authorizations violate s. 8 of Canadian
Charter of Rights and Freedoms.
Appellant was charged with conspiring to import a narcotic. The evidence against
him was derived largely from private communications intercepted pursuant to wiretap
authorizations. At the conclusion of a voir dire to determine the admissibility of the
intercepted communications, the trial judge refused to order the opening of the sealed
packets containing the affidavits upon which the authorizations were granted and found
the wiretap evidence to be admissible. He convicted appellant. Relying on its decision in
Playford, released after the trial judge's ruling, the Court of Appeal found that appellant
was entitled to have access to the sealed packets. The affidavits were edited to protect
confidential informants and then released to him. The court found that the editing did not
impair counsel's ability to determine the facial validity of the affidavits, that the affidavits
set out sufficient indicia of reliability of the informant involved, and that they set out
ample facts to meet constitutional requirements for a reasonable search and seizure. Since
appellant had not shown that the affiant had made a false statement knowingly and
intentionally, or with reckless disregard for the truth, he was not entitled to cross-examine
him. The court concluded that the trial judge's refusal to permit appellant to have access
to the affidavits did not result in a miscarriage of justice and upheld the conviction. The
main issues on this appeal are whether the accused is entitled to access to the material in
the sealed packet; on what terms an accused may challenge an authorization for wiretap;
special requirements relating to informants; the procedure for editing affidavits in the
sealed packet; whether the accused is entitled to cross-examine on the affidavits; and
whether the authorizing judge's failure to include a minimization clause resulted in
authorization of an unreasonable search and seizure in violation of s. 8 of the Canadian
Charter of Rights and Freedoms.
Held (L'Heureux-Dubé and McLachlin JJ. dissenting): The appeal should be allowed.
Per Dickson C.J. and Lamer C.J. and La Forest, Sopinka and Gonthier JJ.: The Court
of Appeal was right to open the sealed packets since the accused is entitled, subject to
editing, to have their contents produced in order to enable him to make full answer and
defence.
Since wiretaps constitute a search or seizure, the statutory provisions authorizing them
must conform to the minimum constitutional requirements demanded by s. 8 of the
Canadian Charter of Rights and Freedoms. The issuing judge must be satisfied that there
are reasonable and probable grounds to believe that an offence has been or is being
committed, and that the authorization sought will afford evidence of that offence.
The procedures available for challenging a wiretap authorization are: (1) a Parsons
voir dire before the trial judge to determine whether the authorization is valid on its face,
the remedy being exclusion under s. 178.16 of the Code; (2) a Wilson application before
81
the issuing court to determine the substantive or subfacial validity of the affidavit, the
remedy being the setting aside of the authorization; (3) a Garofoli hearing before the trial
judge to determine whether the authorization complies with s. 8 of the Charter, the
remedy being a determination of whether the evidence should be excluded under s. 24(2)
of the Charter; and (4) a Vanweenan hearing before the trial judge to determine whether
the authorization names all "known" persons as required by ss. 178.12(1)(e) and
178.13(2)(c) of the Code, the remedy being exclusion under s. 178.16.
When it is asserted by an accused that a wiretap infringes s. 8 of the Charter, the
application for review should be made to the trial judge, even though applications to open
the sealed packed must be made to a judge designated in s. 178.14(1)(a)(ii) of the Code,
who in some cases will not be the trial judge. In determining whether a search is
reasonable under s. 8 of the Charter, the reviewing judge must determine whether the
Code requirements have been satisfied, since the statutory conditions are identical to the
requirements of s. 8. Whereas Wilson precluded a review of the authorizing judge's
decision that the statutory conditions had been complied with, unless some ground such
as fraud or new evidence was established, the application of s. 8 requires review as a step
in determining the reasonableness of the search and seizure. If, based on the record, the
reviewing judge concludes that the authorizing judge could have granted the
authorization, then he should not interfere. A finding that the interception is unlawful
attracts the peremptory language of s. 178.16 and the evidence is inadmissible. Section
24(2) of the Charter cannot have the effect of making the evidence admissible even if its
admission would not bring the administration of justice into disrepute. Accordingly, an
accused who has invoked s. 24 and established that an interception was unlawfully
obtained is entitled to have the evidence excluded under s. 178.16.
Hearsay statements of an informant can provide reasonable and probable grounds to
justify a search, but evidence of an informer's tip, by itself, is insufficient to establish
reasonable and probable grounds. The reliability of a tip is to be assessed by having
regard to the totality of the circumstances. The results of the search cannot, ex post facto,
provide evidence of the reliability of the information.
The courts clearly have a power to edit derived from the supervising and protecting
power they have over their own records. In determining what to edit, the judge will have
regard for the rule against disclosure of police informers, subject to the "innocence at
stake" exception. The determination in each case will require a balancing of the relevance
of the identity of the informer to the accused's case against the prejudice to the informer
and to the public interest in law enforcement which disclosure would occasion.
The preconditions for cross-examination of the affiant imposed by the Court of
Appeal, based largely on the American case of Franks v. Delaware, are too restrictive.
This Court has consistently protected the right to cross-examine. The concerns regarding
protection of the identity of informers and prolongation of proceedings can be
accommodated without such a drastic curtailment of the right. There is no right to crossexamine informers, since they are not witnesses and cannot be identified unless the
accused brings himself within the "innocence at stake" exception. Leave to cross-examine
82
should be granted at the discretion of the trial judge, who may impose limitations on its
scope, when he is satisfied that cross-examination is necessary to enable the accused to
make full answer and defence. The accused must establish a basis for the view that crossexamination will oppugn the existence of one of the preconditions for the authorization.
Appellant has shown a basis for cross-examination here. In view of the degree of
reliance by the police on the informer in this case, if the informer is discredited then the
factual basis for the authorization is undermined. Since appellant was not permitted to
cross-examine the affiant, there should be a new trial.
The failure of the authorizing judge to impose conditions minimizing the interception
of irrelevant communications does not result in the authorization of an unreasonable
search and seizure in violation of s. 8 of the Charter. An absolute requirement of live
monitoring in all cases would impose too heavy a burden on Canadian law enforcement
officials. While a requirement of live monitoring or visual confirmation would generally
be appropriate when telephone calls are to be intercepted at public pay telephones, the
same considerations do not apply with respect to the private residence of a person named
in an authorization unless there are special circumstances calling for live monitoring, and
appellant has not satisfied the Court that any special considerations are involved here.
Per L'Heureux-Dubé and McLachlin JJ. (dissenting): Since the power of a judge to
grant a wiretap authorization subject to the preconditions set out in s. 178.13(1) of the
Code must be exercised in conformity with the Charter, the section should be read so as
to require that the judge be satisfied that there are reasonable grounds to believe that the
specified offence has been or is being committed, and that evidence of the offence will be
obtained by the interception sought. Apart from this limitation on a judge's ability to
authorize a wiretap, the direct protection for individuals comes from two sources: s.
178.16(1)(a) of the Code, which states that to be admissible in evidence an electronic
interception must have been "lawfully made", and s. 24(2) of the Charter, which provides
for the exclusion of evidence where the evidence was obtained in a manner that infringed
a Charter right and it is established that its admission would bring the administration of
justice into disrepute. An accused seeking to exclude evidence of an interception has two
remedies: (1) a Wilson application to a superior court to set aside the authorization,
thereby rendering the interception not "lawfully made" within the terms of s. 78.16(1)(a);
and (2) a Garofoli application before the trial judge (often a provincial court judge) for
exclusion of the intercepted evidence on the ground that it constitutes an unreasonable
search and seizure under s. 8 of the Charter and its admission would tend to bring the
administration of justice into disrepute under s. 24(2). The question of whether the
packet should be opened is a matter within the discretion of the judge hearing the
application, who must balance the interests of the accused in the protection of privacy
and a fair trial, including the right to make full answer and defence, with the public
interest in the administration of justice. Given the importance of the accused's right to
make full answer and defence, the balance will generally fall in favour of opening the
packet, subject to editing and special concerns for the administration of justice which
may arise in particular cases. Here the Court of Appeal held that the packet should have
been opened, subject to editing, and the balance in this case mandates that conclusion.
83
In deciding whether the accused may cross-examine on the affidavit, the judge must
again balance the interests of the accused with the public interest in the administration of
justice. Given that cross-examination may present greater problems for the administration
of justice and less importance, from the point of view of ensuring a fair trial, than does
access to the packet, the balance will generally favour denial unless the accused is able to
make a preliminary showing establishing the special relevance of the cross-examination.
In this case appellant has not established that cross-examination was likely to assist him
in presenting a full answer and defence, and it posed risks of disclosure of confidential
police information and of lengthening the proceedings to no purpose. In these
circumstances the balance clearly favours rejection of the right to cross-examine.
R. v. Silveira [1995] 2 S.C.R. 297: Unreasonable search and seizure -- Exigent
circumstances -- Admissibility of real evidence if search unlawful -- Police
entering house to protect real evidence while waiting for issuance of search
warrant -- Search conducted and evidence seized only after warrant issued -Whether or not search and seizure contrary to s. 8 of Charter -- If so, whether
admission of evidence would bring administration of justice into disrepute
Present: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Exigent
circumstances -- Admissibility of real evidence if search unlawful -- Police entering
house to protect real evidence while waiting for issuance of search warrant -- Search
conducted and evidence seized only after warrant issued -- Whether or not search and
seizure contrary to s. 8 of Charter -- If so, whether admission of evidence would bring
administration of justice into disrepute -- Canadian Charter of Rights and Freedoms, ss. 8,
24(2) -- Narcotic Control Act, R.S.C., 1985, c. N-1, ss. 10, 12.
The police arrested appellant during an undercover drug operation which had
indicated that a cache of cocaine for trafficking purposes was located in appellant's house.
The police delayed obtaining a search warrant for the house until after the arrest in order,
they said, not to be accused of presenting stale information to the justice of the peace. To
prevent the destruction or the removal of the evidence between the time of the arrest and
the arrival of the search warrant, officers attended at appellant's house, knocked,
identified themselves, and entered without an invitation with guns drawn. They then
checked the premises for weapons, holstered their weapons, confined the occupants to the
house and advised them to continue with their activities. The judicial officer issuing the
warrant was not informed of the occupation of the house by the police. Cocaine and cash,
some of it marked money used by the undercover police to buy cocaine on earlier
occasions, were discovered on the search and seized, but no weapons were found.
84
Appellant, when in police custody, was told that the house had been occupied. He was
not allowed to contact his lawyer, however, until he provided police with the combination
of the locked bag where the drugs and drug money were found.
The entry into the house was conceded on appeal to be in violation of the s. 8 Charter
right to freedom from unreasonable search and seizure. Both the trial judge and the Court
of Appeal decided that admission of this evidence would not bring the administration of
justice into disrepute and was therefore admissible under s. 24(2) of the Canadian Charter
of Rights and Freedoms. At issue here was whether this determination was wrong.
Held (La Forest J. dissenting): The appeal should be dismissed.
Per Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The warrantless entry by the
police to secure the premises and prevent the destruction of evidence was,
notwithstanding their good intentions, a form of search which was not authorized by law
and infringed the appellant's s. 8 Charter rights. No artificial division could be drawn
between the entry into the home by the police and the subsequent search of the premises
made pursuant to the warrant because the two actions were so intertwined in time and in
their nature.
R. v. Kokesch was distinguishable. The illegal entry by the police here was to protect
real evidence and was not analogous to the perimeter search conducted in R. v. Kokesch,
which resulted in the acquisition of enough evidence by the police to obtain a search
warrant.
The three primary factors which should guide the consideration of a court in
determining whether evidence should be excluded under s. 24(2) of the Charter
are: (a) the effect of the admission of the evidence on the fairness of the trial; (b) the
seriousness of the Charter breach; and (c) the effect of excluding the evidence on the
justice system's repute. Findings of the courts below pertaining to s. 24(2) issues should
not be overturned absent some apparent error as to applicable principles or rules of law or
unless those findings are unreasonable.
Section 24(2) of the Charter should not be used as a matter of course to excuse
conduct which has in the past been found to be unlawful. The entry and search
of a dwelling-house without a warrant is a very serious breach of the Narcotic Control
Act and the historic inviolability of a dwelling-house. In the future, even if such exigent
circumstances exist, the evidence would likely be found inadmissible under s. 24(2).
Here, the evidence seized as a result of the search was real evidence that existed in the
appellant's residence. It would inevitably have been discovered in a search of those
premises. Its admission cannot conceivably be thought to affect the fairness of the trial
adversely.
For the police to enter a dwelling-house without a warrant flies in the face of the
provisions of the Narcotic Control Act and denies the historical and fundamental
85
importance of a person's home. Yet, exigent circumstances did exist: the nature of the
crime, the public arrests near the dwelling-house and the belief by the police that they
needed to enter the house in order to preserve the evidence while they awaited the search
warrant which they believed to be on the way. The Charter violation was rendered less
serious in light of the particular facts of this case.
If the urgent emergency circumstances are such that the police are required to enter a
dwelling without a warrant to preserve evidence, the question as to whether or not the
serious nature of the breach would render the evidence obtained in a subsequent search
inadmissible will have to be carefully considered on a case-by-case basis. Such evidence
will in future be admitted only in rare cases. It would be preferable for the police to
obtain a search warrant prior to the arrest even if it was on more limited information. An
explanation to the trial court concerning the need for speed in searching the premises may
often satisfactorily answer any allegations that the warrant is so stale-dated as to be
ineffective. Now the police may be able to obtain a search warrant by telephone by
making use of s. 487.1 of the Criminal Code.
Drug trafficking is a serious crime and the evidence seized was vital to the proof of
the case against the appellant. The admission of the evidence would not have an adverse
effect upon the reputation of the administration of justice.
Per L'Heureux-Dubé J.: No violation of s. 8 of the Charter occurred given the exigent
circumstances. The police not only had reasonable and probable cause for the arrest of
the appellant but also had reasonable and probable grounds to believe that they would
find drugs in his house. The police acted reasonably upon entry of the premises and were
not found to have acted in bad faith. Moreover, the search of the premises did not start,
nor was one attempted, before a search warrant was obtained. In fact, the police entered
the appellant's dwelling-house not for the purpose of searching for narcotics but rather for
securing the premises while awaiting a search warrant.
Concessions of law are not binding on courts. The concession made here, that the
entry infringed s. 8 of the Charter, was unacceptable and constituted an error
of law. Exigent circumstances, both under the common law and under the Charter,
constitute an exception to the ancient maxim "a man's home is his castle" which
underlies the finding of a serious s. 8 Charter violation. The Crown bears the onus of
demonstrating that exigent circumstances justified the entry by the police.
An inquiry into the common law is required in this regard because s. 10 of the
Narcotic Control Act neither eliminates the common law exceptions relative to
exigent circumstances nor deals with entries into private dwellings under exigent
circumstances. Neither s. 10 nor the common law precludes warrantless police
entries in exigent circumstances. A warrantless entry into a private dwelling, be it under
the common law or under the Charter, requires lawful justification and the exigent
circumstances that were clearly found to have existed justified the entry here. The entry
accordingly did not infringe s. 8 of the Charter.
86
A lower expectancy of privacy exists in the workplace. The level of expectation of
privacy in the context of the business of trafficking in drugs is no different from that of a
legitimate business, whether it be conducted from the home or on business premises. The
Charter was not intended to protect blindly privacy interests claimed in the context of
criminal activities played out within one's home. Given his criminal activities, the
accused had an objectively low expectation of privacy within his dwelling.
If a Charter violation had occurred, the evidence should not be excluded under s. 24(2)
of the Charter.
Per La Forest J. (dissenting): The Crown properly conceded that the appellant's
constitutional right to be secure against an unreasonable search and seizure had
been breached. The very statute the police were attempting to enforce made it abundantly
clear that the police may only enter a dwelling "under authority of a warrant" issued by a
justice. It thus violated s. 8 of the Charter. The police action of securing the entire
household constituted a search, or at the very least, a seizure. It is difficult to see on what
authority the police could hold the occupants of the house under "house arrest" in their
own home with or without a search warrant and they had no reasonable grounds to
believe any of them were involved in the crime under investigation.
The distinction between the initial police entry to secure the house and the subsequent
search after the search warrant was granted and produced at the house is unrealistic. The
seizure of the house and the ensuing search were part of a single operation aimed at
finding evidence to confirm the previously monitored drug transactions.
The objective expectation of privacy of the appellant was high. The fact that one is not
home does not reduce but rather reinforces the notion that the police cannot be permitted
unauthorized powers of entry. More than the opportunity to destroy the evidence was lost
-- appellant, and society, lost the security guaranteed by the Charter that the police will
not invade a private house without conforming to the established law.
Absent clear statutory language, the police have no power to enter a dwelling-house to
conduct a search without a warrant. The search therefore violated both the s. 10 of the
Narcotic Control Act and s. 8 of the Charter.
The presence of exigent circumstances was not a relevant consideration under s. 8.
Urgent situations may, along with other circumstances, be considered in assessing the
seriousness of the Charter breach in the course of considering whether evidence gathered
as a result of such breach should be admitted into evidence under s. 24(2) of the Charter
but an examination under that provision presupposes a Charter breach. The "exigent
circumstances" here arose solely out of the manner in which the police chose to structure
the operation; they created their own.
The findings of the courts below regarding s. 24(2) issues are ordinarily accorded
considerable deference. That is not so, however, where such findings flow from errors in
the applicable principles.
87
There was a sufficient temporal connection between the warrantless search and the
evidence ultimately obtained to require an analysis under s. 24(2) of the Charter. The
Charter violation occurred in the course of obtaining the evidence. The initial entry, the
seizure of the house and its occupants and the finding of the evidence can only be seen as
part of one continuous transaction.
A number of criteria can be examined in determining whether the admission of
evidence obtained in violation of a Charter right should be rejected as tending to
bring the administration of justice into disrepute. These are frequently grouped as: (1)
those affecting the fairness of the trial; (2) those relating to the seriousness of
the Charter violation; and (3) those relating to the effect on the reputation of justice. The
evidence should be rejected if its admission would result in an unfair trial. It may also be
rejected if the breach is serious even without causing the trial to be unfair. The most
important criteria in this case concern the good faith of the police, the circumstances of
urgency, and the availability of other investigative techniques.
At best, without engaging in an ex post facto analysis, it can be assumed that the
evidence would probably have been found. While the admission of the real evidence of
the cocaine and drug money would be unlikely to affect the fairness of the trial,
buttressing this conclusion with hindsight is indicative of precarious logic.
The right to privacy in one's home is one of a fundamental nature and was seriously
breached by the police when they entered without a warrant. The exceptional and rare
indicia that might permit the admission of evidence obtained through such a breach are
not present.
The trial judge made no finding that the police acted in good faith, and considerable
evidence indicates the contrary. The officers seemed, at best, ill-informed about the
extent of their authority and ought to have known both that a warrantless entry was
"highly unorthodox" and that the Charter guaranteed the right to be secure from
unwarranted police entry. Their conduct was so lax to be unacceptable. The manner in
which the police procured the warrant is open to serious criticism in that information
about the police occupation of the house should not have been withheld from the judicial
officer issuing the warrant. The seriousness of the breach was further exacerbated by the
attempt by police to have the appellant incriminate himself while he was in custody and
had not yet had an opportunity to speak to a lawyer. By informing the appellant that
police were inside his house in order to solicit a confession or further evidence to buttress
the warrant they had yet to acquire, the police unacceptably manipulated the fears and
concerns of the appellant for the members of his family who were present in the house.
The denial of the appellant's right to telephone counsel from the time of his arrival at the
police station until after he had provided the combination to the locked gym bag
containing the cocaine and drug money was yet another component in a continuing
pattern of disregard for the rights of the appellant.
88
A reasonable way of proceeding with the request for the warrant would have been to
alert the issuing justice before the arrests that additional information relevant to the
proposed search might be gained during the apprehension of the suspects. The police
would then supply this information to the justice as soon as possible. Absent true exigent
circumstances, the Narcotic Control Act and the Charter mandate that it is the only way
to proceed. This conclusion is reinforced by Parliament's provision in the Criminal Code
for telewarrants. The fact that the police had available permissible and practical
techniques for conducting their investigation in conformity with the Charter, but chose
instead to sequence their operations in a manner that seriously offended fundamental
liberty interests, further exacerbates the severity of the Charter breach. The cumulative
evidence of a poorly managed operation, a glaring pattern of disregard for Charterprotected interests and an ignorance of the necessity to apprise a judicial officer fully of
all relevant information when seeking a warrant were striking.
Urgency is a factor affecting the seriousness of the Charter breach to be weighed
under s. 24(2) of the Charter. Here, the exigency existed as the direct result of the manner
in which the police chose to structure their operation. The police could have sought a
warrant before the take-down but instead created their own exigency in their sequencing
of the arrests. Public arrests are not an unusual occurrence justifying a claim of exigent
circumstances.
The attempt to link drugs automatically to the possible presence of firearms so as to
ground a claim of exigent circumstances as justification for pre-warrant securing of
premises should be resisted. Officers who enter a house without a warrant cannot be in a
better position to ensure their safety than if they enter with a warrant. A general suspicion
that firearms may be present should not be used to bolster a claim of urgency.
The illicit drug trade is odious and poses a grave threat to society. All reasonable steps
must therefore be taken to eradicate it. But the desirability of these efforts, no matter how
grave the threat, cannot make the courts deviate from their high duty to ensure that those
who wield power on behalf of the state do so within the limits of the Charter. To consider
constitutional guarantees as bothersome technicalities is far more destructive in the long
term than the momentary evil sought to be prevented. The evidence of the drugs and
money must be excluded. To apply a less exacting standard concerning the exclusion of
evidence for crimes involving drugs than for other offences would not enhance the
reputation of justice.
The concept of exigent circumstances allows the courts, on rare occasions, to permit
the admission of evidence despite its being obtained through a breach of the Charter. That
uncommon departure cannot be permitted to operate where it is feasible to obtain prior
judicial authorization for a search. To expand exigent circumstances to include police
created emergencies, whether arising from bad faith or gross ineptitude, is to undermine
seriously the requirement that judicial authorization is required before an entry onto
private premises can be made. The long term impact of allowing police practices creating
exigent circumstances where minimal foresight could have avoided them dictates that the
89
evidence in this case must be excluded. To admit this evidence would bring the
administration of justice into disrepute; it must be excluded under s. 24(2) of the Charter.
R. v. Colarusso [1994] 1 S.C.R. 20: Unreasonable search and seizure -Coroners Act permitting warrantless seizures by coroners -- Validity of legislation
-- Whether investigatory provisions of Coroners Act intra vires province
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Coroners
Act permitting warrantless seizures by coroners -- Whether provision violates s. 8 of
Canadian Charter of Rights and Freedoms -- Coroners Act, R.S.O. 1980, c. 93, s.
16(2)(a) -- Canadian Charter of Rights and Freedoms, s. 8.
Constitutional law -- Validity of legislation -- Whether investigatory provisions of
Coroners Act intra vires province -- Coroners Act, R.S.O. 1980, c. 93, s. 16(2)(a) -Constitution Act, 1867, s. 91(27).
Appellant was an impaired driver involved in two serious accidents within the course of a
few minutes. He first struck a pick-up truck from behind sending it out of control,
stopped briefly and drove on. Both occupants of the truck received significant injuries.
Minutes later, appellant's vehicle crossed the centre line of the highway and was involved
in a head-on collision killing the innocent driver. Appellant had been driving without
headlights at the time of the second accident -- 1:30 a.m. The police arrived shortly after
the second accident. Appellant had been knocked unconscious, was disoriented on
regaining consciousness and his breath smelled of alcohol. Formal demand was made for
a breath sample, but no sample was taken. The police arrested appellant and took him to
hospital where medical staff took blood and, assisted by a police officer, urine samples as
part of a standard "Trauma Protocol Procedure". Although appellant was initially
uncooperative, he ultimately consented to the samples being taken for medical purposes
only.
A lab technician gave samples of the blood and urine to the coroner at the coroner's
request pursuant to s. 16(2) of the Coroners Act but only after the coroner wrote a signed
note explaining why he wanted the samples. The coroner then turned the samples over to
a police officer at the hospital with instructions that they be properly stored and be taken
for analysis.
Appellant was convicted. At trial, the analyst's testimony as to appellant's blood alcohol
level, as determined by the tests done on the samples, formed an important part of
appellant's convictions as the police had not obtained any independent bodily fluid or
breathalyser sample from the appellant. The Court of Appeal upheld appellant's
convictions. Here, the constitutional questions queried: (1) whether s. 16(2) of the
Coroners Act infringed the Charter guarantee against unreasonable search and seizure (s.
8); (2) and if so, whether it was saved by s. 1; and (3) whether s. 16(2) was ultra vires the
province because it encroached on the federal criminal law power.
Held: The appeal should be dismissed.
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Per La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Iacobucci JJ.: Where a bodily
sample is seized by a party other than the police but is ultimately used against the
individual in a criminal prosecution, the court must go beyond the initial non-police
seizure and determine whether the actions of the police constitute a seizure by the state or
make the initially valid seizure by the coroner unreasonable.
Absent evidence to the contrary, the finding that the police officer who helped appellant
urinate into a bottle at the hospital was acting as agent of the hospital and not as a police
officer should stand. The presence of the officer, however, was unwise as the hospital
staff could have obtained the sample themselves.
The activities of the police after the arrival of the coroner at the hospital could be viewed
in two different ways: (1) as amounting to a seizure by the police independent of the prior
seizure by the coroner, and (2) as making the originally valid seizure by the coroner
unreasonable because that seizure was not confined to the limited statutory purpose but
the evidence seized was ultimately used for law enforcement purposes. The seizure,
however viewed, violated the guarantee against unreasonable search and seizure in s. 8 of
the Charter.
The protection of s. 8 of the Charter can be invoked not only if the bodily fluid sample is
taken directly from the person whose rights are affected (and from whom the sample
originated) but also from the medical staff who extracted the sample. This protection of s.
8 necessarily extends to a state seizure where the "taking" is from the immediate
possession of another person who is lawfully in possession of the bodily sample.
Here, the criminal investigation was already under way when the coroner gave the
samples to the police. The evidence, prior to the taking of the blood and urine samples,
was insufficient to sustain a conviction for the impaired driving offences. The police
knew that further evidence of intoxication was required and consequently made a formal
demand for a breathalyser sample at the accident scene. After the coroner gave the blood
and urine samples to the police officers for the purpose of transporting it to the
laboratory, no further attempt was made to obtain a breathalyser sample or a warrant for a
blood sample. The police must have known that they could use the results of the analysis
as evidence against the appellant and may have regarded the blood sample as the best
available evidence. Given the effective control by the police over the samples held by
another agent of the state, the police seized the blood sample from the appellant
independently of the coroner's seizure (although the police seizure was obviously
facilitated by the actions of the coroner).
The actions of the police violated appellant's right to be secure against unreasonable
seizures. The reasonable expectation of privacy in one's own bodily fluids guaranteed by
s. 8 of the Charter is not diminished merely because a coroner chooses to exercise his or
her power to seize evidence under s. 16(2) of the Coroners Act. The coroner's
intervention accordingly did not alter the fact that the police must comply with the
requirement in Hunter v. Southam Inc. that prior judicial authorization be obtained before
seizing a bodily sample. The note written by the coroner to obtain the release of the
samples from the hospital staff failed to meet the standards of a seizure for criminal
investigation purposes because the coroner is not an independent judicial officer and the
standard with which the coroner must comply is only the good faith belief that the
evidence is necessary for the purposes of his or her non-criminal investigation. The
subpoena obtained to bring the analyst to trial too was inadequate because it was not
91
obtained until after the seizure by the police occurred and the evidence obtained by
means of the subpoena was therefore the fruit of the invalid procedure.
The seizure, when the evidence was being used by the coroner for valid non-criminal
purposes within the scope of the Coroners Act, was reasonable and did not violate s. 8 of
the Charter. A lower standard than the Hunter requirement of prior judicial authorization
may be acceptable in such circumstances. However, once the evidence or the information
derived from it is appropriated by the state's criminal law enforcement arm for use
against the person from whom it was seized, the seizure will become unreasonable and
run afoul of s. 8 of the Charter. The state's criminal law enforcement arm cannot "piggy
back" the coroner's investigation to circumvent the guarantees of Hunter.
It was not necessary to decide the constitutional questions, either as regards the alleged
breach of the Charter or as regards the constitutional powers of the province relating to s.
16(2) of the Coroners Act under the Constitution Act, 1867 because the search, even
assuming validity, was unreasonable.
While provincial legislation governing the conduct of inquests does not generally
constitute an improper intrusion into the federal criminal law power, all the investigative
powers granted to coroners are not necessarily within the legislative competence of the
provinces. Even though an inquest is only held in the absence of any criminal charges,
the coroner's investigation may overlap with an existing police investigation after charges
have been laid or where charges may be pending. The potential for unacceptable
infringement on the federal criminal law power is therefore greater at the investigative
stage than during the inquest itself. The coroner's dependency on the police during the
investigative stage mandated under s. 16(4) and s. 16(5) of the Coroners Act brings these
provisions dangerously close to the boundary of legislation in the sphere of the federal
criminal law power.
The coroner cannot be allowed to be in the position of assisting the criminal investigation
through his or her compliance with the mandatory elements of s. 16(5) of the Coroners
Act. The coroner can seize without complying with the Hunter standards because he or
she does so for a purpose that is unrelated to a criminal investigation. Section 16(5) of the
Coroners Act cannot be interpreted to permit the coroner to convert this exemption from
these standards into an exemption for the police in the conduct of a criminal
investigation. The application of s. 16(5) of the Coroners Act must be restricted to
situations in which it can clearly be determined that the police officers are acting merely
as the agents of the coroner. Any other interpretation would imperil its constitutional
validity. The police officers here were not acting as the agents of the coroner at the
material times; rather, they were acting in furtherance of their criminal investigation.
Section 16(4), which provides that a coroner may authorize a police officer or a medical
practitioner to exercise all the investigative powers granted to the coroner in s. 16(2), is
equally troubling. This provision allows a coroner to delegate certain powers in
emergency situations where he or she is unable to attend at the scene immediately. The
danger is that the distinction between the coroner's investigation and the criminal
investigation will be obliterated and the two investigations amalgamated into one. As
well, by delegating s. 16(2) powers to the police, a coroner is giving the police
investigatory powers beyond that which they normally possess given the reduced
procedural requirements with which the investigator must comply under s. 16.
92
In determining whether evidence should be rejected under s. 24(2) of the Charter as
bringing the administration of justice into disrepute, three factors should be considered:
(1) the effect of admission of the evidence on the fairness of the trial process; (2) the
seriousness of the Charter violation; and (3) the effect of exclusion on the reputation of
the administration of justice.
The evidence of the forensic analyst at trial as to the alcohol content of the blood sample
should not be excluded under s. 24(2) of the Charter: its admission would not bring the
administration of justice into disrepute. The independent and prior existence of the
sample, completely apart from any s. 8 infringement by the state, is an important
consideration weighing on the side of allowing the introduction of the evidence. So too
was the fact that all parties to the gathering of the samples -- the medical staff, the
coroner and the police -- acted in good faith and believed that they were acting within the
areas of their authority. The critical evidence would almost certainly have been
discovered absent the violation and would have been obtained under a warrant. The
Charter infringement accordingly had only a minimal effect on the outcome of the trial.
Finally, the offence occurred in such aggravating circumstances that the repute of the
administration of justice would be negatively affected if the evidence were to be
excluded.
Per Lamer C.J. and Cory, McLachlin and Major JJ.: Appellate interference with the
finding that the samples were taken with appellant's consent solely for medical purposes
was unwarranted because the evidence supported this finding. The act of obtaining these
samples did not constitute a seizure within the meaning of s. 8 of the Charter. The
coroner's taking the samples from the hospital staff was conceded to constitute a seizure
for the purposes of s. 8 of the Charter; the hospital held them solely for medical reasons.
The tendering of the coroner's samples and analysis into evidence at criminal proceedings
did not constitute a further seizure.
The police did not need to obtain a warrant to obtain blood from the accused or pursue
their demand for a breath sample because the samples existed and were analysed. An
important distinction exists between obtaining samples in breach of the accused's right to
refuse treatment and the use in court of evidence obtained pursuant to statutory authority.
The only seizure attracting s. 8 scrutiny was that by the coroner under s. 16(2) of the
Coroners Act.
The coroner's seizure was reasonable because it was authorized by the Coroners Act
which was both valid and reasonable and it was effected in a reasonable manner. The
coroner was entitled, and perhaps required by law, to continue his investigation
notwithstanding the simultaneous police investigation. Section 27 of the Coroners Act
does not bar investigation by a coroner when a person has been (or is likely to be)
charged with an offence under the Criminal Code in respect of the death in question.
Assuming the constitutionality of the rest of s. 16, which is not challenged, the powers
conferred under s. 16(2) of the Coroners Act are intra vires the province. These powers
are incidental to the duties assigned to coroners, notably to investigate a death to
determine if an inquest is necessary. This power, when used to seize samples of bodily
substances of an accused, does not constitute an intrusion by provincial action of the
sanctity of the right to remain silent and therefore does not violate the federal criminal
law power.
93
The seizure was reasonable and accordingly did not violate s. 8 of the Charter
notwithstanding the absence of prior judicial authorization. The reasonableness of the
power granted must be analysed in light of the particular context in which it operates.
Here, the coroner has both investigative and quasi-judicial duties. The criterion in Hunter
v. Southam Inc. that there be reasonable and probable cause to believe that a specific
offence has been committed was inapplicable in this context because the coroner's role
was not to investigate crime or to reach any conclusions about whether a crime has been
committed. Given this irrelevancy, the applicability of the other Hunter v. Southam Inc.
criteria was doubtful.
No police seizure occurred here. The court must focus on how the public authority (the
police) obtained the samples. Here, the coroner obtained the samples pursuant to s. 16(2)
of the Coroners Act and turned them over to the police for safekeeping pursuant to s.
16(5). Assuming the constitutionality of s. 16(2), no taking by the police of the samples
occurred without the person's consent apart from the actions which are consequent upon
the coroner's seizure. No complaint was made as to the discovery of the evidence
(implicating the law of search) or as to the steps taken to preserve it (implicating the law
of seizure). The police knew of the evidence and were not concerned to preserve it apart
from fulfilling their duties with respect to the Coroner's Act.
There was no improper cooperation among the coroner, the police and medical personnel
so as to cause the police actions to constitute a seizure. The presence of the police officer
in the emergency department was quite proper given that the accused was under arrest.
The hospital lab technician was initially reluctant to turn over the samples to the coroner
and only did so after speaking to the attending physician and obtaining a written note
from the coroner. The police were required to take charge of the samples by virtue of s.
16(5) of the Coroners Act. (The constitutionality of this provision was not challenged
here.)
It was not necessary to decide if calling the analyst to testify as to the significance of the
samples constituted a seizure by the Crown within the meaning of s. 8 of the Charter.
Even if this is characterized as a seizure within the meaning of s. 8, it is reasonable. The
Thomson criteria for prior authorization were met as far as the introduction of the
evidence at trial was concerned. Given these circumstances, the interest of the state in
taking and using the information took precedence over the accused's privacy interest. His
rights under s. 8 were not violated by the production of the evidence against him at trial.
Comité paritaire de l'industrie de la chemise v. Potash; Comité paritaire de
l'industrie de la chemise v. Sélection Milton [1994] 2 S.C.R. 406: Inspections
-- Powers of inspection of an agency responsible for implementing a government
decree in a regulated industrial sector -- Whether these powers of inspection,
conferred by a provincial statute, infringe s. 8 of the Canadian Charter
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
94
Constitutional law -- Charter of Rights -- Unreasonable search or seizure -- Inspections - Powers of inspection of an agency responsible for implementing a government decree in
a regulated industrial sector -- Whether these powers of inspection, conferred by a
provincial statute, infringe s. 8 of the Canadian Charter of Rights and Freedoms -- Act
respecting Collective Agreement Decrees, R.S.Q., c. D-2, s. 22(e).
Civil rights -- Unreasonable search or seizure -- Inspections -- Powers of inspection of
an agency responsible for implementing a government decree in a regulated industrial
sector -- Whether these powers of inspection, conferred by a provincial statute, infringe s.
24.1 of the Charter of Human Rights and Freedoms, R.S.Q., c. C-12 -- Act respecting
Collective Agreement Decrees, R.S.Q., c. D-2, s. 22(e).
Following a complaint, the appellant Comité paritaire was informed that work had been
given sewing shirts with the brand of the respondent Sélection Milton to employees who
were not paid. Inspectors from the Comité paritaire went to the respondent's premises on
two occasions to obtain a list of the shirt sewing subcontracts given out by the
respondent, see the respondent's pay register and visit its workshop in order to meet with
the employees. Under the second paragraph of s. 22(e) of the Act respecting Collective
Agreement Decrees ("ACAD"), inspectors "may, as of right and at any reasonable time,
examine the registration system, the compulsory register and the pay-list of any
employer, take copies or extracts therefrom, verify as regards any employer and any
employee the rate of wage, duration of work, apprenticeship system and observance of
the other provisions of the decree [and] require . . . all information deemed necessary".
The respondent Potash, representing Sélection Milton, refused to grant the inspectors'
requests on the ground that they had no search warrant. Proceedings were then brought
against the respondents pursuant to s. 33 ACAD and the respondents were fined for
having obstructed the inspection. The Court of Québec concluded that s. 22(e) did not
infringe either s. 24.1 of the Quebec Charter of Human Rights and Freedoms or s. 8 of
the Canadian Charter of Rights and Freedoms. On appeal by trial de novo, the Superior
Court upheld this judgment, but the Court of Appeal allowed the respondents' appeal and
rendered a verdict of not guilty. The court concluded that the second paragraph of s. 22(e)
is inconsistent with s. 24.1 of the Quebec Charter and s. 8 of the Canadian Charter since
it does not contain a requirement of reasonable and probable grounds to believe that the
inspected employer is in fact covered by the decree.
Held: The appeal should be allowed.
Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin and Iacobucci JJ.: The powers
of inspection set out in the second paragraph of s. 22(e) ACAD are contemplated by s. 8
of the Canadian Charter. The power to make copies of documents is analogous to that of
requiring documents to be produced and constitutes a seizure within the meaning of s. 8.
As for the other inspection powers set out in the second paragraph, they may be
assimilated to a search within the meaning of the same section. The visit to the premises
is the foundation of the power to examine specific documents, verify certain working
conditions, and require information. Despite being less invasive than a search, inspection
is unquestionably an "intrusion".
These powers of inspection are reasonable and do not infringe s. 8. The ACAD is a
regulatory statute whose purpose is to ensure decent working conditions in certain sectors
of industry where employees are among the most vulnerable. The inspection powers set
out in this Act enable the parity committees to monitor compliance by employers with the
95
various decrees and observance of the working conditions they impose. The need for such
powers is clear, especially since compliance with the standards imposed by the decrees
depends first and foremost on employer honesty. Given that employers' activities are
extensively regulated by the state, the reasonable expectations of privacy they may have
with respect to the documents mentioned in s. 22(e), whose content is specifically
provided for by the ACAD for professional employers, or with respect to the premises
where an activity subject to specific standards is conducted, are considerably lower.
Moreover, the particular limits placed on the inspection scheme protect, so far as
possible, the right to privacy of the individuals affected. Inspectors may not make copies
of any documents other than those mentioned in the second paragraph. They may not
force an entry into a workplace if the employer refuses to admit them; they must rather
bring proceedings for obstruction. The possibility that certain inspections may take place
at the home of the employer or of the employees, when it coincides with their workplace,
does not make the inspection powers less reasonable. These powers are sufficiently
circumscribed by the nature of the persons affected -- the employer and employee -- to
attain the purpose of the ACAD. The powers to check certain information and to require
information deemed necessary are essential to the carrying out of the parity committees'
function. These powers must be exercised in accordance with the purpose of the ACAD
and it will always be possible to challenge abuses. Such a possibility does not alter the
validity of the legislative scheme and the balance it strikes between the interests of
society and the individual's right to privacy. Finally, the second paragraph of s. 22(e) is
not unreasonable by reason of its application to all employers, and not only those that
inspectors have reasonable grounds to believe are subject to a decree. Within the limits of
their respective areas of application, the decrees are binding on all employers. If the
inspection powers were not applicable to all employers, it would be impossible to verify
whether some of them were covered by a given decree or acted in compliance with the
conditions it imposes.
The criteria set out in Hunter, which were developed in a very different context, are not
applicable. The exercise of the powers of inspection set out in the second paragraph of s.
22(e) does not carry with it the stigmas normally associated with criminal investigations
and their consequences are less draconian. The possibility that those responsible for
enforcing a statute will uncover in the course of inspections facts that point to a violation
does not alter the underlying purpose behind the exercise of the powers of inspection.
The same is true when the enforcement is prompted by a complaint. The complaint
system is a practical means not only of checking whether contraventions of the ACAD
have occurred, but also of deterring them. In view of the important purpose of regulatory
legislation, the need for powers of inspection and the lower expectations of privacy, a
proper balance between the interests of society and the rights of individuals does not
require, in addition to the legislative authority, a system of prior authorization.
The preceding analysis also applies to s. 24.1 of the Quebec Charter.
Per Sopinka, L'Heureux-Dubé, Gonthier, McLachlin and Major JJ.: The powers
conferred on inspectors by the second paragraph of s. 22(e) ACAD are subject to the
constitutional protection of s. 8 of the Canadian Charter. The right to obtain information
from the employer and employees, and the right to examine documents and make copies
of them, constitute a "seizure" within the meaning of s. 8 and, although it is an
administrative inspection, the right of access by inspectors to work premises is
96
comparable to a "search" within the meaning of this section. These searches and seizures
are reasonable and do not infringe s. 8. The ACAD regulates certain industrial sectors
through its mechanism for extending collective agreements by decree. Its purpose is to
guarantee employees working in these sectors of activity minimum working conditions.
This social objective is very important, as the employees covered by the decrees are
among the most vulnerable. In this context, the powers of inspection of the parity
committees are essential to ensure implementation of the decrees, particularly as
compliance with the decrees is primarily a matter of honesty and integrity on the part of
employers.
The expectations of privacy which employers covered by the disputed provision may
have are not very high. The documents that may be examined or reproduced under s.
22(e) relate only to the coverage of employers by the ACAD and various decrees. The
keeping of most of these documents is in any case required by the ACAD or other
legislation. These documents are commercial in nature, and the mere possibility of
seizure of information of a personal nature cannot by itself determine whether the powers
conferred by the ACAD are reasonable. The ACAD does not authorize the seizure of
documents of a personal nature, and in the event that such documents would be seized,
one could always apply to the courts for an appropriate remedy. Finally, the expectations
of privacy which employers may have are further reduced by the fact that the powers of
inspection are exercised at the employees' workplace, even discounting the fact that the
right of access conferred by the ACAD is relatively limited.
The standard of reasonableness is less strict in a matter involving the regulation of an
industrial sector than it is in criminal matters. Since the ACAD is regulatory legislation
providing for administrative inspections in a regulated industrial sector, the rules in
Hunter, requiring a system of prior authorization based on the existence of reasonable
and probable grounds, do not apply. Administrative inspections involving a visit to the
premises without prior authorization are not unreasonable in the context of the ACAD.
The visit of the premises must be necessary in order to properly serve the regulatory
objective and be rationally connected to the main purpose of the Act. Moreover, the
ACAD significantly circumscribes the manner in which the inspection will take place.
The visit must be made at a reasonable time and takes place at the employees' workplace.
The inspectors cannot freely engage in a search of the premises. Access to the workplace
is permitted solely in order to consult certain documents and obtain information from the
employer and employees. Nor does the ACAD permit inspectors to use force to gain
access to the workplace. In the event of a refusal by the employer, the inspectors can only
lay charges for obstruction of an inspection. With respect to visits to a workplace for
administrative purposes, the powers conferred by the disputed provision imply only a
minimum and very circumscribed intrusion in a context in which employers have a lower
expectation of privacy. It is of the very nature of an administrative inspection in a
regulated industry that it takes place when there are no reasonable grounds to believe that
a particular offence has been committed. Finally, the rule in U.S. jurisprudence requiring
that a warrant be obtained before undertaking an administrative inspection, a rule which
has now been abandoned in practice, is not desirable here.
Furthermore, an inspection resulting from a complaint made by an employee is
insufficient in itself to justify inspectors being subject to the requirements of Hunter.
There is an important distinction between having reasonable and probable grounds to
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believe that an offence was committed and simply having an information. An inspection
will often be necessary before it is even possible to establish the existence of reasonable
grounds to believe that a breach of the law has occurred. This is the position mandated by
the fact that the ACAD covers only a regulated industrial sector. Finally, a complaint such
as the one filed here which is proved valid once the inspection is completed leads not to a
penal proceeding but to a civil claim for wages. Civil actions are clearly not contemplated
in Hunter.
Reasonable and probable grounds to believe that the "inspected" employer is in fact
covered by the decree are not essential to the constitutional validity of the second
paragraph of s. 22(e). Even if the powers conferred by that paragraph may potentially be
exercised against all employers and not merely those subject to a decree, these powers are
not unreasonable. All employers, as well as all employees, come within the ambit of the
ACAD, because it is the nature of the work done by an employee and not the employer's
type of business which matters in determining whether they are subject to the application
of the decrees. In view of the particular scheme of the ACAD, inspectors must have the
means of determining whether a given employer is in fact subject to a decree. Such a
determination is sometimes difficult without prior inspection given the technical nature of
the provisions for the application of decrees. In addition, it should be assumed that,
because of their particular expertise on a parity committee, inspectors will, in most cases,
conduct inspections at the premises of employers which they suspect are subject to a
decree. In this way, not only will abuses be avoided but infringements of reasonable
expectations of privacy will be minimal.
The analytical approach and the tests developed in relation to s. 8 of the Canadian
Charter apply equally to s. 24.1 of the Quebec Charter. According to this analysis, the
second paragraph of s. 22(e) does not infringe s. 24.1.
The request for the production of documents provided for in the fourth paragraph of s.
22(e) constitutes a "seizure" within the meaning of s. 24.1 of the Quebec Charter, but this
seizure is reasonable and does not infringe s. 24.1. The fourth paragraph places adequate
limits on the documents of which the inspectors have the power to request consultation or
production.
Kourtessis v. M.N.R. [1993] 2 S.C.R. 53: Income tax -- Enforcement -- Search
and seizure -- Warrant authorizing search and seizure quashed but material
seized not returned --Second warrant issued with respect to retained material but
subject to right to challenge -- Appellants challenging warrant by bringing
application for declaration that search warrant and enabling legislation
unconstitutional and for order quashing warrant -- Application dismissed -- Court
of Appeal finding no right to appeal because search and seizure effected under
federal criminal law power and no right to appeal existing in Criminal Code or
Income Tax Act -- Whether or not appeal could be effected under provincial
procedures -- Whether or not search and seizure unreasonable contrary to s. 8 of
Charter
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Present: La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin, Stevenson and
Iacobucci JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Income tax -- Enforcement -- Search and seizure -- Warrant authorizing search and
seizure quashed but material seized not returned --Second warrant issued with respect to
retained material but subject to right to challenge -- Appellants challenging warrant by
bringing application for declaration that search warrant and enabling legislation
unconstitutional and for order quashing warrant -- Application dismissed -- Court of
Appeal finding no right to appeal because search and seizure effected under federal
criminal law power and no right to appeal existing in Criminal Code or Income Tax Act - Whether or not appeal could be effected under provincial procedures -- Whether or not
search and seizure unreasonable contrary to s. 8 of Charter -- Income Tax Act, S.C.
1970-71-72, c. 63, as amended by S.C. 1986, c. 6, ss. 231.3, 231.3(7), 239 -- Canadian
Charter of Rights and Freedoms, s. 8.
Courts -- Jurisdiction -- Right of appeal -- Income tax -- Enforcement -- Search and
seizure -- Warrant authorizing search and seizure quashed but material seized not
returned -- Second warrant issued with respect to retained material but subject to right to
challenge -- Appellants challenging warrant by bringing application for declaration that
search warrant and enabling legislation unconstitutional and for order quashing warrant
-- Application dismissed -- Court of Appeal finding no right to appeal because search and
seizure effected under federal criminal law power and no right to appeal existing in
Criminal Code or Income Tax Act -- Whether or not appeal could be effected under
provincial procedures.
Courts -- Procedure -- Income tax -- Enforcement -- Search and seizure -- Warrant
authorizing search and seizure quashed but material seized not returned -- Second
warrant issued with respect to retained material but subject to right to challenge -Appellants challenging warrant by bringing application for declaration that search
warrant and enabling legislation unconstitutional and for order quashing warrant -Application dismissed -- Court of Appeal finding no right to appeal because search and
seizure effected under federal criminal law power and no right to appeal existing in
Criminal Code or Income Tax Act -- Whether or not appeal could be effected under
provincial procedures.
Officers of Revenue Canada believed that appellants were evading or attempting to evade
tax by making false and deceptive statements in income tax returns contrary to s. 239 of
the Income Tax Act (ITA). The British Columbia Supreme Court issued warrants to search
for and seize documents which could afford evidence of the alleged violations. These
warrants were subsequently quashed by another judge of that court. The items that had
been seized, however, were not returned and McEachern C.J.S.C. issued a search warrant
for the seizure of relevant documents located at the Department's premises, provided that
everything seized be sealed and that appellants have thirty days to challenge the warrant.
Appellants instituted proceedings in the B.C. Supreme Court by way of originating
petition challenging the warrant under s. 231.3(7) of the ITA, s. 24(1) of the Canadian
Charter of Rights and Freedoms, and the inherent jurisdiction of the court. The relief
sought was an order quashing the warrant and the search and seizure executed under it,
ordering the return of the material seized, prohibiting its use and ordering its destruction
and declaring s. 231.3 of the ITA to be contrary to ss. 7, 8 and 15 of the Charter.
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The entire application was dismissed by the B.C. Supreme Court in two judgments -- one
dealing with non-constitutional issues and one with constitutional issues. On appeal to the
Court of Appeal, appellants, unsure whether leave was required, gave both notice of
appeal and notice of application for leave to appeal. The Minister brought a motion to
quash on the ground that no appeal lay from the B.C. Supreme Court's judgment. The
Court of Appeal allowed the motion to quash, holding that it had no jurisdiction to hear
the appeal. It reasoned that the litigation in question was a criminal proceeding subject to
Parliament's exclusive jurisdiction to prescribe criminal procedure and no right of appeal
could be found in the ITA or the Criminal Code. The Court of Appeal would in any event
have dismissed the appeal on the merits.
The preliminary issue to be decided here was whether the British Columbia Court of
Appeal had jurisdiction to entertain the appellants' appeal. The constitutional question
before the Court queried whether s. 231.3 of the ITA infringed ss. 7 and 8 of the Charter.
Held: The appeal should be allowed. Section 231.3 of the Income Tax Act infringes s. 8
of the Charter.
Per La Forest, L'Heureux-Dubé and Cory JJ.: Section 231.3 was held to violate s. 8 of the
Charter in Baron v. Canada, [1993] 1 S.C.R. 416. The procedural issues, nevertheless,
have very important implications for the working of the enforcement provisions of the
ITA and other federal statutes to which federal criminal procedures apply.
An appeal is not available because no appeal has been provided by the relevant legislative
body and courts of appeal have no inherent rights to create appeals. Only superior court
judges appointed under s. 96 of the Constitution Act, 1867 have inherent jurisdiction. The
appellants, however, may pursue an action for a declaration, to which the ordinary rules
of procedure in civil actions apply, including provisions for appeal.
Various policy reasons underlie enacting a procedure that limits rights of appeal.
Sometimes the opportunity for more opinions does not serve the ends of justice. There
should not be unnecessary delay in the final disposition of proceedings, particularly
proceedings of a criminal character. This is especially applicable to interlocutory matters
which can ultimately be decided at trial. As well, there is the simple value of a final
decision to resolve a dispute without the costs, in time, effort and money, of further
hearings.
The offence created by s. 239 of the ITA is constitutionally supportable under both
Parliament's criminal law power and its taxing power. The procedure to secure its
enforcement is that set forth in the Criminal Code which notably provides only limited
rights of appeal. Section 34(2) of the Interpretation Act provides that the provisions of
the Criminal Code are to apply to offences created by Parliament unless the statute
creating the offence provides otherwise. No right of appeal from an order issuing a search
warrant is provided in the Criminal Code. Section 231.3 of the ITA was enacted for
search warrants as contemplated by s. 34(2) of the Interpretation Act. It also makes no
provision for appeal other than the review process set forth in s. 231.3(7).
Parliament, in the exercise of a federal head of power, may provide procedures for the
enforcement of the measures it has enacted. That is a matter within its exclusive
competence. Parliament can adopt provincial procedures for that purpose, and such an
adoption will be assumed where it is necessary to give effect to a right. When Parliament
selects a specific and integrated procedure, however, there is no room for the operation of
provincial law. The enforcement provisions of the ITA form part of the uniform and
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integrated procedure for the investigation and prosecution of offences under the Act. No
federal adoption was made or can be assumed here. Barring such adoption it is
constitutionally unacceptable to read in appeals for other interlocutory proceedings or to
adopt other provincial rules of procedure.
The admixture of provincial civil procedure with criminal procedure could result in an
unpredictable mish-mash. In dealing with procedure, and particularly criminal procedure,
it is important to know the precise steps to be pursued. Parliament accordingly adopted a
comprehensive procedure under the Criminal Code and adopted that procedure for the
enforcement of penal provisions in other statutes, including the ITA.
A number of pre-trial remedies are available to a person who has been the subject of a
search. Section 231.3(7) provides for review and the Criminal Code makes provision for
a speedy application for the return of seized goods. If the matter should proceed to trial,
the accused may attack the search warrant in any way he considers appropriate, including
the allegation that it infringes the provisions of s. 8 of the Charter. If the matter should
not go to trial, a party may still seek civil damages for compensation.
The general right of appeal set forth in the Federal Court Act should not be assumed to
apply to a proceeding provided in a separate statute that is a mere adjunct to a general
system of criminal procedure where appeals of this nature are not provided. Parliament
arguably did not intend by this minor grant of jurisdiction to the Federal Court (in what is
for it an untypical jurisdiction) to have had in contemplation the general right of appeal
devised for quite different types of proceedings. There may, in other words, be no
anomaly at all.
The declaration does not constitute a review of a decision taken in a criminal proceeding
because it merely states the law without changing anything. It should not be widely used
as a separate collateral procedure to, in effect, create an automatic right of appeal where
Parliament has, for sound policy reasons, refused to do so. Another procedure need not be
provided as long as a reasonably effective procedure exists. A reasonably effective
procedure has not been provided here, however. Section 231.3(7) and other procedures
afford a measure of protection to the appellants but do not provide an adequate statutory
provision for constitutional review of a search warrant.
Where a search is being conducted at the pre-trial stage, there is no trial judge and unlike
the situation after the charge, no express Charter guarantee that proceedings must take
place within a reasonable time. An investigation can go on indefinitely in continuing
breach (if the search provisions are unconstitutional) of the appellants' Charter rights for
an extensive period. The property of the individual subject to the search may remain in
the custody of the state for a protracted period in violation of Charter norms.
The power to issue a search warrant under the ITA is vested in a superior court judge and
at common law a decision of a superior court judge cannot be the subject of collateral
attack. The judge issuing the warrant is not in a position to review for constitutionality at
an ex parte hearing, and may not have the jurisdiction to do so on a later review of the ex
parte order. An action for a declaration would not be barred, even if on later review the
judge is competent to review the warrant and the empowering legislation on the basis of
constitutionality, because that remedy would not provide sufficient constitutional
protection.
The appellants should be permitted to pursue an action for a declaration. Since the action
for a declaration is a discretionary remedy, however, the judge, in the exercise of his or
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her discretion, should consider the specific circumstances presented and refuse to
entertain the action if satisfied that criminal proceedings against the accused would be
initiated within a reasonable time. This would avoid the overlap and delay that have been
among the major informing considerations in devising the rules for the governance of the
discretion to allow or not to allow an action for a declaration to proceed.
A declaration should issue declaring s. 231.3 of the ITA and the search warrant issued
thereunder to be of no force or effect. The appellants, in light of that declaration, are also
entitled to the return of their documents and other property and all copies and notes
thereof.
While an action for a declaration is an appropriate remedy at this stage of the
proceedings, certiorari generally appears to be a more suitable instrument for reviewing
the constitutionality of the action, and the possibility that it might have issued in this case
should be left open. At common law certiorari does not lie against a decision of a
superior court judge, but what is alleged here is a breach of a constitutional right which
may call for an adaptation of the inherent powers of a superior court to make the
procedure conform to constitutional norms. If certiorari might have issued, there would
appear to be little use for the declaratory action in this context.
Per L'Heureux-Dubé J.: The reasons of La Forest J. were joined given that the majority
decision in Knox Contracting Ltd. v. Canada, [1990] 2 S.C.R. 338, applied.
Per Sopinka, McLachlin and Iacobucci JJ.: Section 231.3 of the ITA violates the
reasonable search guarantee found in s. 8 of the Charter for the reasons given in Baron v.
Canada, [1993] 1 S.C.R. 416.
The offence and search warrant provisions of the ITA are referrable to both the federal
criminal law and taxation power, and jurisdiction to legislate procedure in matters
relating to these provisions is shared between the provinces and the federal government,
subject to federal paramountcy in the event of conflict between federal and provincial
legislation. Parliament is free to assign jurisdiction to any tribunal it chooses, whatever
the source of its legislative power. If federal legislation is silent, the ordinary rule is that a
litigant suing on a federal matter in a provincial court takes the procedure of that court as
he or she finds it. This does not mean that provincial legislation does not apply unless
"adopted" by federal legislation. The authorities make it clear that a province has
legislative authority to adjudicate federal matters and that such legislation is only ousted
if it conflicts with federal legislation. The fact that there is alleged to be a comprehensive
procedure contained in federal legislation is only relevant to determine whether
provincial legislation is ousted because it conflicts with federal legislation. It is not
ousted in relation to declaratory relief, which includes the right of appeal conferred by
provincial legislation, and should also extend to ancillary relief which enables the Court
to give effect to the declaration.
Knox Contracting Ltd. v. Canada, [1990] 2 S.C.R. 338, should be distinguished so as not
to foreclose an appeal in proceedings relating to a declaration that the statute authorizing
a search warrant violates the Constitution, coupled with an application to set aside the
search warrant. These two remedies can be exercised, in combination, prior to the laying
of charges, and the result of such exercise may be appealed.
An application under s. 231.3(7) would be a wholly inappropriate proceeding to test the
constitutional validity of the provision under which the seizure is made. It applies only if
the judge is satisfied that the documents seized are not needed for an investigation or
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prosecution or were not seized in accordance with the warrant. Section 231.3(7) can only
be resorted to if both the warrant and the statutory provision under which the warrant was
issued are valid. Not only is subs. (7) not an appropriate forum with respect to a
constitutional challenge of the search and seizure provision, but a judge would also not
have jurisdiction to deal with such a challenge upon a plain reading of the words of the
subsection.
In the alternative, Knox Contracting can be distinguished on the basis that the procedure
relating to proceedings for declaratory relief on constitutional grounds cannot be
characterized as criminal law so as to exclude a right of appeal. In Knox Contracting the
proceeding taken was a motion to quash. There was no constitutional challenge to
legislation in that case. Here, the proceeding taken was not simply to quash the warrant
but an action for a declaration that s. 231.3 was invalid on constitutional grounds. A
motion to quash, when not combined with an action for declaratory relief, may take its
character for the purpose of division of powers from the underlying proceeding which it
attacked. On the other hand, an action for a declaration as to the constitutional validity of
a statute does not necessarily partake of the character of the statute which is attacked. It
has a life of its own.
An action to declare a statutory provision unconstitutional is not transformed from a civil
remedy to a criminal remedy merely because the declaration relates to a criminal
statutory provision. It cannot be used as a substitute for an application to the trial judge in
a criminal case in order to acquire a right of appeal. By virtue of s. 24(1) of the Charter,
there are some proceedings available to an accused in the context of a criminal case in
respect to issues that could be the subject of an action for a declaration. The superior
courts have jurisdiction to entertain such applications even if the superior court to which
the application is made is not the trial court. However, a superior court has a discretion to
refuse to do so unless, in the opinion of the superior court, given the nature of the
violation and the need for a timely review, it is better suited than the trial court to deal
with the matter. The superior court would therefore have jurisdiction to entertain an
action for a declaration seeking this kind of relief but subject to the same discretion to
refuse to exercise it. The court is justified in refusing to entertain the action if there is
another procedure available in which more effective relief can be obtained or the court
decides that the legislature intended that the other procedure should be followed.
As a general rule, the court should exercise its discretion to refuse to entertain declaratory
relief when such relief is sought as a substitute for obtaining a ruling in a criminal case.
This will be the apt characterization of any declaration which is sought with respect to
relief that could be obtained from a trial court which has been ascertained. The same
considerations apply before a trial court has been ascertained if the relief sought will
determine some issue in pending criminal proceedings and does not have as a substantial
purpose vindication of an independent civil right. In such circumstances, the mere fact
that relief was sought in the guise of an action for a declaration would not confer a right
of appeal from the refusal to entertain the action.
No issue was raised here in respect of the British Columbia Supreme Court's jurisdiction
or in respect of the exercise of its discretion to entertain the appellants' application by
way of originating petition. There was no trial court because no charge was laid. The
attack on the validity of the statutory provision authorizing the search, while it would
affect the admissibility at trial of the things seized, was also vital to the taxpayers' civil
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interests. The search warrant would not only authorize a trespass but also seizure of
personal property. The petition for a declaration was therefore properly entertained under
the British Columbia rules of procedure. Those rules which clearly applied at first
instance should also apply to permit an appeal here. If Parliament did not intend to
exclude a petition for a declaration under provincial rules, it cannot have intended to
exclude an appeal pursuant to the same rules.
R. v. Wiley [1993] 3 S.C.R. 263: Cultivation of marihuana -- Police conducting
perimeter search of accused's property without a warrant -- Whether warrantless
perimeter search violated s. 8 of Canadian Charter -- Whether evidence should
be excluded
Constitutional law -- Charter of Rights -- Admissibility of evidence
Present: Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Cultivation
of marihuana -- Police conducting perimeter search of accused's property without a
warrant -- Whether warrantless perimeter search violated s. 8 of Canadian Charter of
Rights and Freedoms -- Narcotic Control Act, R.S.C., 1985, c. N-1, s. 10.
Constitutional law -- Charter of Rights -- Admissibility of evidence -- Bringing
administration of justice into disrepute -- Police conducting perimeter search of
accused's property without a warrant -- Search warrant later obtained partly on basis of
information gathered during perimeter search -- Warrantless perimeter search violating
accused's right to be secure against unreasonable search and seizure -- Whether search
pursuant to warrant reasonable -- Whether evidence should be excluded -- Canadian
Charter of Rights and Freedoms, s. 24(2).
The police received a tip from an informant indicating that marihuana was being
cultivated in a hydroponic grow lab at a certain residence. Two officers went to
determine the exact location of the reported residence. They entered onto the property
and noted vents on the outside of the house with condensation on them and the smell of
fresh marihuana emanating from them. On returning to their detachment they ascertained
that the residence whose perimeter had been searched belonged to the accused. An
information was sworn which included the observations of the informant as well as those
made during the perimeter search. A search warrant was issued pursuant to s. 12 of the
Narcotic Control Act ("NCA"). On execution of the warrant, a grow lab containing
marihuana plants and related cultivation equipment were located. The trial judge
acquitted the accused on charges of unlawful cultivation of marihuana and possession of
marihuana for the purposes of trafficking. He concluded that the evidence seized by
means of the warrant should be excluded pursuant to s. 24(2) of the Canadian Charter of
Rights and Freedoms since the warrant had been issued on the basis of information
obtained through a warrantless perimeter search which was contrary to s. 8 of the
Charter. The Court of Appeal allowed the Crown's appeal and ordered a new trial.
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Held: The appeal should be dismissed.
The warrantless perimeter search of the accused's residence was unreasonable and
therefore in violation of s. 8 of the Charter. A warrantless search to be reasonable must
be authorized by law. The only plausible legal authorization in the present case is s. 10
NCA and that section is constitutionally applicable to warrantless searches only in
situations where exigent circumstances render it impracticable to obtain prior judicial
authorization, and no evidence was led to establish such circumstances here.
The warrant and the search and seizure conducted pursuant to it are nonetheless legally
valid. The warrant was issued on the basis of five pieces of evidence, namely two tips by
an informant, observations made during a police reconnaissance, police inquiries at the
station house as to the ownership of the accused's residence and observations made
during the warrantless perimeter search. The tips were relevant and reliable and properly
taken into account by the issuing justice. Even without the observations made during the
warrantless perimeter search, the other facts in the information, taken together, were
sufficiently compelling that the warrant would still have been issued. While there is a
sufficient temporal connection between the evidence obtained as a result of the search
pursuant to the warrant and the warrantless perimeter search to trigger the operation of s.
24(2) of the Charter, the trial judge erred in excluding the evidence. The police acted in
good faith relying on s. 10 NCA and the Court of Appeal's decision in R. v. Kokesch, even
though that decision was later overturned by this Court. Furthermore, the evidence was
real in nature and was essential to establishing the occurrence of these relatively serious
offences.
R. v. Wise [1992] 1 S.C.R. 527: -- Electronic surveillance -- Tracking devices -Police installing unauthorized electronic tracking device in accused's car to
monitor his whereabouts -- Whether use of device infringed accused's right to be
secure against unreasonable search and seizure -- whether admission of
evidence so obtained would bring administration of justice into disrepute
Present: Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Stevenson and Iacobucci JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Electronic
surveillance -- Tracking devices -- Police installing unauthorized electronic tracking
device in accused's car to monitor his whereabouts -- Whether use of device infringed
accused's right to be secure against unreasonable search and seizure -- Canadian
Charter of Rights and Freedoms, s. 8.
Constitutional law -- Charter of Rights -- Admissibility of evidence -- Bringing
administration of justice into disrepute -- Police installing unauthorized electronic
tracking device in accused's car to monitor his whereabouts -- Accused's right to be
secure against unreasonable search and seizure infringed -- Whether admission of
evidence so obtained would bring administration of justice into disrepute -- Canadian
Charter of Rights and Freedoms, s. 24(2).
Criminal law -- Electronic surveillance -- Tracking devices -- Police installing
unauthorized electronic tracking device in accused's car to monitor his whereabouts -Whether use of device infringed guarantee against unreasonable search and seizure in s.
105
8 of Canadian Charter of Rights and Freedoms -- If so, whether admission of evidence so
obtained would bring administration of justice into disrepute under s. 24(2) of Charter.
Appellant was charged with mischief to property. The Crown sought to introduce
evidence of his whereabouts obtained through the use of an electronic tracking device (a
"beeper") installed in his car. The police had had appellant under surveillance for some
time since they suspected him of involvement in a recent murder believed to be linked to
a series of similar killings. On July 14, 1987, they had obtained a warrant to search his
home and vehicle, but had found nothing to link him to any of the homicides. The police
had towed the car to the police station to carry out the search. While it was there, but after
the warrant had expired, they installed the beeper. On August 15, the day of the alleged
offence, the police had been able to trace the location of appellant's car using the beeper
and established surveillance on a vehicle resembling his parked in a driveway. About two
hours later, the police heard a loud crashing sound, caused by the felling of a
communications tower. Soon after, they observed another vehicle, which was in fact
appellant's, pull out of a laneway in a nearby field. On August 26 the police obtained a
warrant to search appellant's vehicle. When the car was vacuumed, melted pieces of
metal, consistent with the metal guy wires of the communications tower, were found. The
constant electronic surveillance was maintained until mid-November, when appellant was
arrested on the mischief charge. The trial judge excluded all evidence obtained through
the use of the beeper, on the ground that it had been obtained in violation of appellant's
right to be secure against unreasonable search and seizure under s. 8 of the Canadian
Charter of Rights and Freedoms. He acquitted appellant. The Court of Appeal set aside
the acquittal and ordered a new trial.
Held (La Forest, Sopinka and Iacobucci JJ. dissenting): The appeal should be dismissed.
Per Lamer C.J. and Gonthier, Cory and Stevenson JJ.: The installation of the beeper
inside the appellant's vehicle constituted an unreasonable search in violation of s. 8 of the
Charter. Since the subsequent monitoring of the vehicle invaded a reasonable expectation
of privacy, it also constituted a search, and, in the absence of prior authorization, violated
s. 8. The search was only minimally intrusive, however. The expectation of privacy in a
motor vehicle is much less than in one's home or office. As well, the device used was
unsophisticated and inaccurate. It was a very rudimentary extension of physical
surveillance, and was attached to the appellant's vehicle, not to the appellant. The police
also had a bona fide belief that they were protecting the public when the device was
installed, in view of the series of homicides in the rural area in which the appellant lived.
The admission of the evidence in this case would not bring the administration of justice
into disrepute. The evidence as to the location of the car would not affect the fairness of
the trial. This evidence was real, not conscriptive. There was no police compulsion or
enticement which required appellant to enter or drive his car. The beeper merely helped
the police to gather evidence which, to a great extent, they had obtained by visually
observing the vehicle. The police also acted in good faith in this case. They had
reasonable and probable grounds for searching appellant's vehicle when they installed the
beeper. While the prolonged electronic monitoring after the metal filings were discovered
is difficult to justify, the police obtained the evidence as to the location of the vehicle
within a 30-day period, and this was not an unreasonable length of time to maintain
surveillance, particularly in light of their obligation to protect the community from the
suspected serial killer. There was clearly a pervasive threat of violence and a sense of
106
urgency here. Moreover, the offence in this case is a serious one. The evidence pertaining
to the metal pieces should also be admitted, for the same reasons.
Per Sopinka and Iacobucci JJ. (dissenting): The installation of the tracking device in
appellant's automobile constituted an unreasonable search in violation of s. 8 of the
Charter. It is not necessary to consider whether the surveillance itself would violate s. 8.
The admission of the evidence would bring the administration of justice into disrepute.
The police knowingly committed an illegal trespass. While they suspected appellant of a
serious offence, mere suspicion cannot be used to redeem Charter violations. There is no
appreciable distinction between this case and R. v. Kokesch, [1990] 3 S.C.R. 3.
Per La Forest J. (dissenting): The installation of the tracking device in appellant's car
constituted an unlawful trespass and violates his privacy rights under s. 8 of the Charter.
The use of the device to monitor his movements also violated s. 8. An individual has a
reasonable expectation of privacy not only in the communications he makes, but in his
movements as well, even when travelling on a public road. This is not a case where the
police are monitoring the roads for the purpose of regulating or observing what goes on
there. It is a case of tracking the movements of an individual. There is an important
difference between courting the risk that our activities may be observed by other persons
and the risk that agents of the state, in the absence of prior authorization, will track our
every move. It is constitutionally unacceptable that the state should be allowed to rest a
justification for the unauthorized electronic surveillance of a given person on the mere
fact that that person had been in a situation where he could be the object of scrutiny on
the part of private individuals. Whether a person whose movements were surreptitiously
tracked had a reasonable expectation of privacy in given circumstances must not be made
to depend on the degree to which that person took measures to shield his or her activities
from the scrutiny of other persons.
The grave threat to individual privacy posed by surreptitious electronic tracking of one's
movement is such as to require prior judicial authorization. The issuance of a search
warrant will ordinarily call for an objective showing of reasonable and probable cause,
and this should generally be required of those seeking to employ electronic tracking
devices in the pursuit of an individual. Since this means of surveillance, if properly
controlled, is somewhat less intrusive than electronic audio or video surveillance, it may
be possible to establish that judicial officers should be empowered in certain
circumstances to accept a somewhat lower standard, such as a "solid ground" for
suspicion, if it can be established that such a power is necessary for the control of certain
types of dangerous or pernicious crimes.
The evidence obtained through the use of the tracking device should be excluded under s.
24(2) of the Charter. Such evidence would not have existed without the device because
visual contact had been lost. Since the violation in this case was intrusive and longlasting, it was serious. The electronic surveillance continued day and night over many
months. The violation was not mitigated by good faith on the part of the police. The
police certainly knew they needed a warrant to search the car, and that the warrant they
had obtained did not permit what they did, and in fact had expired. The police did not
have reasonable and probable cause, but were acting on mere suspicion. The long-term
consequences of admitting evidence obtained in such circumstances on the integrity of
our justice system outweigh the harm done by this accused being acquitted.
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R. v. Duarte [1990] 1 S.C.R. 30: -- Evidence obtained by electronic surveillance
conducted without authorization -- Conversation recorded with consent of a party
to it -- Recording of conversation entered into evidence -- Evidence obtained as
result of breach of Charter inadmissible if administration of justice would be
brought into disrepute -- Evidence obtained as result of unintentional Charter
breach
Present: Dickson C.J and Lamer, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and
McLachlin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Evidence
obtained by electronic surveillance conducted without authorization -- Conversation
recorded with consent of a party to it -- Recording of conversation entered into evidence - Whether s. 178.11(2)(a) infringed Charter right to freedom from unreasonable search
and seizure -- If so, whether or not it was justified by s. 1 of the Charter -- Whether
unauthorized interception by police, even if not a criminal offence, would violate s. 8 of
the Charter -- Criminal Code, R.S.C. 1970, c. C-34, ss. 178.11(1), (2)(a), 178.16(1)(a),
(b) -- Canadian Charter of Rights and Freedoms, ss. 1, 8.
Constitutional law -- Charter of Rights -- Evidence -- Admissibility -- Evidence obtained
as result of breach of Charter inadmissible if administration of justice would be brought
into disrepute -- Evidence obtained as result of unintentional Charter breach -- Whether
or not admission of evidence would bring administration of justice into disrepute -Canadian Charter of Rights and Freedoms, s. 24(2).
Evidence -- Admissibility -- Evidence obtained by electronic surveillance conducted
without authorization -- Conversation recorded with consent of a party to it -- Recording
of conversation entered into evidence -- Whether s. 178.11(2)(a) infringed Charter right
to freedom from unreasonable search and seizure -- If so, whether or not it was justified
by s. 1 of the Charter -- Whether unauthorized interception by police, even if not a
criminal offence, would violate s. 8 of the Charter -- Whether or not admission of
evidence, if obtained in breach of Charter, would bring administration of justice into
disrepute.
Criminal Law -- Electronic surveillance -- Evidence obtained by electronic surveillance
conducted without authorization -- Conversation recorded with consent of a party to it -Recording of conversation entered into evidence -- Whether s. 178.11(2)(a) infringed
Charter right to freedom from unreasonable search and seizure -- If so, whether or not it
was justified by s. 1 of the Charter -- Whether unauthorized interception by police, even
if not a criminal offence, would violate s. 8 of the Charter.
As part of an investigation into drug trafficking, the police rented an apartment for a
police informer who was working with an undercover police officer. The apartment was
equipped with audio-visual recording equipment installed in a wall. Prior to the
installation of the equipment, the informer and the undercover officer consented to the
interception of their conversations, pursuant to the provisions of s. 178.11(2)(a) of the
Criminal Code. Appellant discussed a cocaine transaction with the undercover officer and
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the informer at the apartment. The undercover officer made notes of these and a
subsequent conversation based upon a review of the tapes of the conversations.
The appellant was later charged with conspiracy to import a narcotic. At trial, he
challenged, on a voir dire, the validity of s. 178.11(2)(a) of the Code which excepts the
interception of conversations to which one of the parties consents from the prohibition of
unauthorized electronic surveillance. The trial judge held that the actions of the
authorities infringed the appellant's rights to be secure from unreasonable search and
seizure under s. 8 of the Charter and that the evidence thereby obtained was held not
admissible. The Crown appealed to the Ontario Court of Appeal which unanimously
allowed the appeal, set aside the acquittal and ordered a new trial.
The constitutional questions stated in this Court queried whether s. 178.11(2)(a) of the
Criminal Code infringed or denied the rights and freedoms guaranteed by s. 8 of the
Canadian Charter of Rights and Freedoms, and if so, whether or not it was justified by s.
1 of the Charter. During argument, the position was advanced that the constitutionality of
s. 178.11(2)(a) might not really arise in that this provision was really an exception to the
criminal prohibition against the interception of private communications set forth in s.
178.11(1). Action contemplated by that exception could not be made criminal by a
Charter attack on its validity. The real question, then, became whether, even though such
action may not constitute a criminal offence, it would nonetheless, when undertaken by
an instrumentality of the state, such as the police, violate s. 8 of the Charter. Finally, if
this action was indeed an unjustifiable infringement of a Charter right, were
communications intercepted as a result of this practice admissible under s. 24(2) of the
Charter?
Held: The appeal should be dismissed. Section 178.11(2)(a) of the Criminal Code, does
not infringe or deny the rights and freedoms guaranteed by s. 8 of the Charter, but the
interception of private communications by an instrumentality of the state with the consent
of the originator or intended recipient thereof, without prior judicial authorization, does
infringe the rights and freedoms guaranteed by s. 8. It was not necessary to answer the
second question.
Per Dickson C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ.:
Surreptitious electronic surveillance of the individual by an agency of the state constitutes
an unreasonable search or seizure under s. 8 of the Charter.
The regulation of electronic surveillance is not directed at protecting a person from the
risk that someone will repeat his words but from the much more insidious danger inherent
in allowing the state, in its unfettered discretion, to record and transmit his words. If the
state were free, at its sole discretion, to make permanent electronic recordings of a
person's private communications, there would be no meaningful residuum to the right to
live free from surveillance. A reasonable balance must therefore be struck between the
right of individuals to be left alone and the right of the state to intrude on privacy in the
furtherance of its responsibilities for law enforcement.
Part IV.1 of the Code strikes an appropriate balance. It meets the high standard of the
Charter which guarantees the right to be secure against unreasonable search and seizure
by subjecting the power of the state to record private communications to external restraint
and requiring that action to be justified by application of an objective criterion. The
imposition of an external and objective criterion affords a measure of protection to any
citizen whose private communications have been intercepted.
109
Privacy may be defined as the right of the individual to determine when, how, and to
what extent he or she will release personal information. A reasonable expectation of
privacy demands that an individual may proceed on the assumption that the state may
only violate this right by recording private communications on a clandestine basis when it
has established to the satisfaction of a detached judicial officer that an offence has been
or is being committed and that interception of private communications stands to afford
evidence of the offence.
The assessment of the constitutionality of a search and seizure must focus on its
`reasonable' or `unreasonable' impact on the subject of the search or the seizure, and not
simply on its rationality in furthering some valid government objective. Applying this
standard, if the surreptitious recording of private communications is a search and seizure
within the meaning of s. 8 of the Charter, it is because the law recognizes that a person's
privacy is intruded on in an unreasonable manner whenever the state, without a prior
showing of reasonable cause before a neutral judicial officer, arrogates to itself the right
surreptitiously to record communications that the originator expects will not be
intercepted by anyone other than the person intended by its originator to receive them.
By contrast to the general provisions on electronic surveillance, the Code places no
restriction on participant surveillance, i.e., where one of the parties to the conversation
consents. The police may employ this practice in their absolute discretion, against whom
they wish and for whatever reasons they wish, without any limit as to place or duration.
There is a total absence of prior judicial supervision of this practice.
There is no logical distinction between third party electronic surveillance and participant
surveillance. Where persons have reasonable grounds to believe their communications
are private communications, the unauthorized surreptitious electronic recording of those
communications is an intrusion on a reasonable expectation of privacy. Our perception
that we are protected against arbitrary interceptions of private communications ceases to
have any real basis once it is accepted that the state is free to record private
communications, without constraint, provided only that it has secured the agreement of
one of the parties to the communication. The risk of being recorded is not simply a
variant of the risk of having one's words disclosed by the person to whom we speak.
Surreptitious electronic recording annihilates the very important right to choose the range
of our listeners.
Whether or not to allow participant surveillance is a policy decision fraught with the
gravest of implications. Countenancing participant surveillance, strikes not only at the
expectations of privacy of criminals but also undermines the expectations of privacy of
all those who set store on the right to live in reasonable security and freedom from
surveillance, be it electronic or otherwise. It has long been recognized that this freedom
not to be compelled to share our confidences with others is the very hallmark of a free
society. The sole effect of requiring a warrant would be to ensure that police restrict
"participant monitoring" to cases where they can show probable cause for a warrant. It
would not hamper their ability to combat crime effectively.
Participant surveillance infringes s. 8 of the Charter. It leaves all the conditions under
which conversations are intercepted to the sole discretion of the police and therefore
cannot be held to meet the definition of "reasonable" in the context of s. 8 of the Charter.
Its large-scale use by police could by-pass any judicial consideration of the entire police
procedures and make the entire scheme in Part IV.1 of the Code largely irrelevant.
110
Indeed, the constitutionality of Part IV.1 of the Code is predicated on the numerous
safeguards designed to prevent the possibility that the police view recourse to electronic
surveillance as a routine administrative matter.
The simple fact that the police could employ the same investigatory tool with or without
a warrant destroys any argument that participant surveillance can be upheld as a
reasonable limit to the right to be secure from unreasonable search and seizure.
Section 178.16(1) of the Code makes certain types of evidence inadmissible. It does not
make a communication admissible. If it is admissible, it is by virtue of the common law.
The communication would be admissible as relevant evidence at common law, but since
it was obtained contrary to s. 8, it will not, by virtue of s. 24(2) of the Charter, be
admissible if to do so would bring the administration of justice into disrepute. Many
factors can be considered in determining if the administration of justice will be brought
into disrepute. Of cardinal importance in assessing these factors is the fairness of the
process, and in particular, its impact on the fairness of the trial.
The breach here infringed an important Charter right and the evidence could have been
obtained without breaching the Charter. It was, however, in no way deliberate and it
stemmed from an entirely reasonable misunderstanding of the law by the police officers
who would otherwise have obtained the necessary evidence to convict the accused in any
event. The admission of this evidence would not bring the administration of the law into
disrepute.
Per Lamer J.: The appeal should be dismissed for the reasons of the Ontario Court of
Appeal. It was consequently unnecessary to address the issue of whether the evidence
should be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms.
R v McKinlay Transport Limited [1990] 1 S.C.R. 627: Income tax audit -Demand for information or documents under s. 231(3) of the Income Tax Act -Whether a demand for information or documents under s. 231(3) constitutes a
seizure -- If so, whether seizure under s. 231(3) unreasonable
Present: Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Income tax
audit -- Demand for information or documents under s. 231(3) of the Income Tax Act -Whether a demand for information or documents under s. 231(3) constitutes a seizure -If so, whether seizure under s. 231(3) unreasonable -- Canadian Charter of Rights and
Freedoms, s. 8.
Taxation -- Income Tax -- Investigation -- Demand for information or documents under s.
231(3) of the Income Tax Act -- Whether s. 231(3) violates the guarantee against
unreasonable search and seizure in s. 8 of the Canadian Charter of Rights and Freedoms.
During an income tax audit of the appellants, Revenue Canada, pursuant to s. 231(3) of
the Income Tax Act, served them with letters demanding information and the production
of documents. Because the appellants failed to comply with these demands, an
information was issued alleging that they had breached s. 238(2) of the Act. A Provincial
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Court judge quashed the information holding that s. 231(3) violated the guarantee to
protection against unreasonable search and seizure in s. 8 of the Canadian Charter of
Rights and Freedoms. The Ontario Supreme Court allowed respondent's appeal. The
court found that s. 231(3) did not authorize a seizure within the meaning of s. 8. The
judgment was upheld by the Court of Appeal.
Held: The appeal should be dismissed.
Per Lamer and Wilson JJ.: A demand for information or documents under s. 231(3) of the
Income Tax Act, coupled with its enforcement mechanism in s. 238(2), does not violate s.
8 of the Charter. The purpose of ss. 231(3) and 238(2), when read together, is not to
penalize criminal conduct but to enforce compliance with the Act. While a demand under
s. 231(3) constitutes a "seizure", for the reasons given in Thomson, it is not an
unreasonable one.
The Income Tax Act is essentially a regulatory statute which controls the manner in
which income tax is calculated and collected. It is based on the principle of self-reporting
and self-assessment. To ensure compliance with the Act, the Minister of National
Revenue must be given broad powers to audit taxpayers' returns and inspect all relevant
records whether or not he has reasonable grounds for believing that a particular taxpayer
has breached the Act. The integrity of the tax system can be maintained only by a system
of random monitoring and s. 231(3) provides the least intrusive means by which effective
monitoring of compliance with the Act can be effected. A taxpayer's expectation of
privacy with regard to the documents in question vis-à-vis the Minister is relatively low.
The taxpayer's privacy interest is protected as much as possible by s. 241 of the Act
which forbids the disclosure of the taxpayer's records or the information contained
therein to other persons or agencies. Therefore, the seizure contemplated by s. 231(3) is
reasonable and does not infringe s. 8 of the Charter.
The standard of review of what is "reasonable" in a given context must be flexible if it is
to be realistic and meaningful. It is consistent with this approach to draw a distinction
between seizures in the criminal or quasi-criminal context to which the full rigours of the
Hunter criteria will apply, and seizures in the administrative or regulatory context to
which a lesser standard may apply depending upon the legislative scheme under review.
In light of the regulatory nature of the legislation and the scheme enacted, it was evident
in this case that the Hunter criteria were ill-suited to determine whether a seizure under s.
231(3) of the Act was reasonable.
Per La Forest J.: As in Thomson, the Income Tax Act, though supported by penal
sanctions, including imprisonment, is essentially of an administrative nature. For the
reasons I gave in Thomson and, subject to these reasons, for those given by Wilson J. in
this appeal, s. 231(3) of the Act is reasonable and does not violate s. 8 of the Charter.
Per L'Heureux-Dubé J.: Subject to the reasons I gave in Thomson, s. 231(3) of the
Income Tax Act does not violate s. 8 of the Charter. While a demand under s. 231(3) of
the Act may be considered a seizure within the meaning of s. 8, such a seizure is
reasonable.
Per Sopinka J.: For the reasons I gave in Thomson, neither the letters of demand herein
nor s. 231(3) of the Income Tax Act violate s. 8 of the Charter. The letters of demand do
not constitute a seizure and s. 231(3) does not authorize a seizure within the meaning of s.
8.
112
R. v. Ladouceur [1990] 1 S.C.R. 1257: Random routine traffic checks -- Checks
authorized by statute -- Driver stopped for no apparent reason -- Driver found to
be driving while licence under suspension and convicted -- Whether or not
random routine traffic checks violating the Charter
Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka,
Gonthier, Cory and McLachlin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Random routine traffic checks -- Checks
authorized by statute -- Driver stopped for no apparent reason -- Driver found to be
driving while licence under suspension and convicted -- Whether or not random routine
traffic checks violating ss. 7, 8 and 9 of the Charter -- If so, whether or not checks saved
by s. 1 -- Canadian Charter of Rights and Freedoms, ss. 1, 7, 8, 9 -- Highway Traffic Act,
R.S.O. 1980, c. 198, s. 189a(1).
Appellant was stopped while driving his car in a random police search to ensure that his
papers were in order and that he had a valid driver's licence. The officers did not suspect
that the appellant was acting unlawfully. Appellant admitted that he knew that his driver's
licence was suspended when he was asked for his driver's licence, ownership and vehicle
insurance documents. A Justice of the Peace found him guilty of driving while his licence
was suspended contrary to s. 35 of the Highway Traffic Act and the Provincial Court
(Criminal Division) and the Ontario Court of Appeal upheld the conviction. The
constitutional questions stated before this Court queried: (1) if s. 189a(1) of the Highway
Traffic Act was inconsistent with ss. 7, 8 and 9 of the Canadian Charter of Rights and
Freedoms to the extent that it authorized the random stop of a motor vehicle and its driver
by a police officer acting without any reasonable grounds to believe that an offence had
been committed when such stop was not part of an organized program; and (2) if so,
whether s. 189a(1) could be justified pursuant to s. 1 of the Charter?
Held: The appeal should be dismissed.
Per Lamer, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ.: Appellant was detained
in violation of s. 9 of the Charter. The police officers assumed control over his movement
by a demand or direction and the legal consequences of the detention were significant.
The detention was arbitrary in that the decision as to whether the stop should be made lay
in the absolute discretion of the police officers.
Sections 7 and 8 of the Charter were not violated. No "seizure" within the meaning of s. 8
occurred here. It was unnecessary to decide whether these random stops infringed s. 7
since it has been determined that routine check random stops violate s. 9 of the Charter.
Section 189a(1) of the Highway Traffic Act was saved by s. 1 of the Charter. The power
of a police officer to stop motor vehicles at random is derived from s. 189a(1) of the
Highway Traffic Act and is thus prescribed by law. The authority also has been justified
by this Court as a prescription of the common law.
The statistics relating to the carnage on the highways substantiate a pressing and
substantial concern which the government was properly addressing through the
legislation in question and the random stops. A more specific aspect of this concern
related to areas where the probability of accidents can be reduced: the mechanical fitness
113
of the vehicle, the possession of a valid licence and proper insurance, and the sobriety of
the driver. They are directly pertinent to the question of random stopping.
The means chosen was proportional or appropriate to those pressing concerns. The
random stop is rationally connected and carefully designed to achieve safety on the
highways and impairs as little as possible the rights of the driver. It does not so severely
trench on individual rights that the legislative objective is outweighed by the abridgement
of the individual's rights. Indeed, stopping vehicles is the only way of checking a driver's
licence and insurance, the mechanical fitness of a vehicle, and the sobriety of the driver.
Deterrence is a critical aspect of the random routine check. The suspension of the driver's
licence for driving offences is important in that the court can impose lighter jail terms for
the benefit of the offender and yet ensure that society is protected. Licence suspensions,
however, must be enforceable to be an effective means of punishment. A real element of
risk of detection of driving by unlicensed drivers is necessary for the suspension of a
licence to be an effective remedy. Random stops supply the only effective deterrent.
To recognize the validity of the random routine check is to recognize reality. This form of
deterrent is a plausible response to the general difficulties of establishing such programs
due to fiscal constraints and shortages of personnel and due to the impossibility of
establishing an effective organized program in rural areas in particular.
The random routine check does not so severely trench upon the s. 9 right so as to
outweigh the legislative objective. Mechanisms are already in place to prevent abuse by
law enforcement officers. Officers can stop persons only for legal reasons -- in this case
reasons related to driving a car such as checking the driver's licence and insurance, the
sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only
questions that may justifiably be asked are those related to driving offences. Any further,
more intrusive procedures could only be undertaken based upon reasonable and probable
grounds. Where a stop is found to be unlawful, the evidence from the stop could well be
excluded under s. 24(2) of the Charter.
Similar powers have been legislatively conferred upon police officers in other free and
democratic societies regarding the stopping of motor vehicles.
Per Dickson C.J. and Wilson, La Forest and Sopinka JJ.: The unlimited right of police
officers to stop motor vehicles without any reason cannot be justified under s. 1 of the
Charter. The evidence here, however, should not be excluded under s. 24(2) of the
Charter.
The random stop constituted an arbitrary detention. The Crown's efforts to discharge its s.
1 onus must be viewed in the context of the s. 9 breaches sanctioned to date in meeting
the objective of ridding the highways of dangerous drivers. Police officers are entitled to
stop motorists at organized check points as part of the R.I.D.E. program to provide a
roadside screening test of sobriety and to check for licences, insurance and mechanical
fitness. The organized check point is available, therefore, as a means of detection of the
unlicensed driver. This case may be viewed as the last straw. If sanctioned, a police
officer could stop any vehicle at any time, in any place, without having any reason to do
so. For the motorist, this would mean a total negation of the freedom from arbitrary
detention guaranteed by s. 9 of the Charter.
The Crown has not demonstrated that this unrestricted power is a necessary addition to
the impressive array of enforcement methods which are available. Random checking at a
stationary, predetermined location infringes the right much less than the unlimited right
114
contended for. It is somewhat more carefully designed to serve enforcement, and is less
intrusive and not as open to abuse as the unlimited power sought to be justified. The
roving random stop, by contrast, would permit any individual officer to stop any vehicle,
at any time, at any place. The decision may be based on any whim. The unlimited power
has the potential of being much more intrusive and occasioning a greater invasion of
privacy.
R. v. Thompson [1990] 2 S.C.R. 1111: Interception of private communications -Validity of authorization -- Sufficiency of description -- Places of interception:
public pay phones and residential premises -- Authorizations permitting private
communications to be intercepted at all places resorted to by named persons
within the province -- Whether authorizations valid -- Surreptitious entry into
residential premises to install intercepting devices ---- No conditions included in
authorizations to protect public interest -- Whether authorizations violate s. 8 of
the Canadian Charter
Present: Dickson C.J. and Lamer C.J. and McIntyre, Wilson, La Forest,
L'Heureux-Dubé and Sopinka JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law -- Interception of private communications -- Validity of authorization -Sufficiency of description -- Places of interception: public pay phones and residential
premises -- Authorizations permitting private communications to be intercepted at all
places resorted to by named persons within the province -- Whether authorizations valid - Whether public pay telephones should be specifically mentioned on face of
authorizations -- Criminal Code, R.S.C. 1970, c. C-34, ss. 178.12(1)(e), 178.13(2)(c),
178.16(1).
Criminal law -- Interception of private communications -- Validity of authorization -Renewal or new authorization -- Police obtaining new authorization prior to expiration of
original authorization -- New authorization including new parties and locations for
surveillance -- Whether appropriate to seek new authorization rather than renewal -Criminal Code, R.S.C. 1970, c. C-34, Part IV.1.
Criminal law -- Interception of private communications -- Admissibility of evidence -Proof of resorting to a place -- Authorizations permitting private communications to be
intercepted at all places resorted to by named persons within the province -- Whether
intercepted private communication in itself can afford evidence that a person resorted to
"a place" -- Criminal Code, R.S.C. 1970, c. C-34, Part IV.1.
Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Interception
of private communications -- Authorizations permitting private communications to be
intercepted at all places resorted to by named persons within the province -- Surreptitious
entry into residential premises to install intercepting devices -- Intercepting devices
installed on public pay telephones -- No conditions included in authorizations to protect
public interest -- Whether authorizations violate s. 8 of the Canadian Charter of Rights
and Freedoms -- If so, whether communications intercepted under authorizations should
115
be excluded pursuant to s. 24(2) of the Charter -- Criminal Code, R.S.C. 1970, c. C-34,
Part IV.1.
The appellants were charged with conspiracy to import marijuana. The Crown's case
consisted principally of private communications which were intercepted under three
judicial authorizations. Paragraph (c) of these authorizations permitted the interception of
telephone communications at the addresses of the persons named in the authorizations "or
elsewhere in the Province of British Columbia resorted to" by these persons. The first
authorization named the appellants T, A and R, and the affidavit filed with it before the
authorizing judge revealed that the police intended to intercept communications at public
pay telephones. Acting under this authorization, the police installed intercepting
equipment at several residences, hotel rooms and public pay telephones. A second
authorization overlapped the first authorization by two days. It named ten persons,
including all appellants except M. Prior to the expiry of the second authorization, a third
authorization was granted naming twelve persons, including all appellants except M.
Under the second and third authorizations, intercepting equipment was installed on other
pay telephones. The equipment installed during the first authorization remained in place
in most of the pay telephones until the end of the investigation. This interception
capability was not mentioned in the subsequent authorizations. On some occasions during
the investigation, tape recorders installed on pay telephones were left on "automatic play
mode" overnight, intercepting the conversations of persons not covered by the
authorizations. The trial judge, on a voir dire, held all but nine interceptions inadmissible.
The Crown called no evidence before the jury and the trial judge directed the jury to
acquit the appellants. The Crown's appeal was allowed and a new trial ordered. This
appeal is to determine (1) whether an authorization permitting the interception of private
communications at all places resorted to by named persons within the province was
lawful; (2) whether such places could include public pay telephones; (3) whether new
authorizations, rather than renewals, were permissible; (4) whether an intercepted
communication could in itself provide evidence that a person resorted to a place at which
communications were intercepted; and (5) whether unsupervised electronic surveillance
of public pay telephones and surreptitious entry into private dwellings constituted
unreasonable searches or seizures contrary to s. 8 of the Canadian Charter of Rights and
Freedoms.
Held (Wilson and La Forest JJ. dissenting): The appeal should be dismissed.
Per Dickson C.J. and Lamer C.J. and L'Heureux-Dubé and Sopinka JJ.: The
authorizations complied with the requirements of Part IV.1 of the Criminal Code. The
authorizations did not permit the interception of communications of anyone anywhere
within the province. They contained limitations. Paragraph (c) was limited to named
persons and paragraph (d) was limited to persons who resort to or use named premises or
communicated with named persons. As to place, each was limited to places resorted to by
five named individuals. Paragraphs (c) and (d), therefore, did not delegate to the police
the determination as to whether the interceptions would assist in the investigation. This
determination was made by the authorizing judge on the basis of the connection to the
target persons.
The authorizations were not invalid because they failed to list pay telephones as places
where private communications could be intercepted. A more specific description could
have been given in view of the fact that the police knew that the named persons intended
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to resort to pay telephones. However, subject to its effect on s. 8 of the Charter, this in
itself does not render the authorizations unlawful. Section 178.13(2)(c) of the Code does
not state that it must be the most specific description. It requires only a general
description.
The police should apply to renew an existing authorization when they want to extend its
term and leave its other provisions unchanged. Where the authorization has expired or
where it is sought to extend the scope of surveillance, however, the proper course is to
seek a new authorization. Here, the second and third authorizations widened the scope of
the first authorization, adding between them nine new targets for interception. It was
therefore proper for the Crown to apply, under Part IV.1 of the Code, for new
authorizations instead of renewals.
On a proper interpretation of the "resort to" clause, the police can only intercept
communications of the target person at a place if they have evidence to believe, on
reasonable and probable grounds, that this place was resorted to or would be resorted to
by the target. An intercepted communication cannot in itself provide evidence that a
person "resorted to" a particular place, bringing that interception into compliance with the
authorizations. Before the evidence of the conversation can be admitted, there must be
other evidence before the trial judge indicating that the location was a place resorted to or
used by the accused. This can be established through a previously lawfully authorized
interception. In this case, the interceptions made under paragraph (c) of the authorizations
are lawful under Part IV.1 of the Code, provided that the police acted upon sufficient
evidence that a person "resorted to" a place. The interceptions made at places for which
such evidence was absent were unlawful and, therefore, inadmissible under s. 178.16(1)
of the Code.
Electronic surveillance constitutes a "search or seizure" within the meaning of s. 8 of the
Charter. Paragraph (c) of the authorizations did not per se violate the s. 8 requirement of
prior judicial authorization demanded under Hunter. The "resort to" clause did not enable
the police to usurp the function of the judge. The authorizing judge's determination as to
whether there are reasonable and probable grounds to believe that the interception of an
individual's private communications will assist the investigation can be made with respect
to certain classes of places under s. 178.13 of the Code. To require a determination by the
police officers that they have reasonable and probable grounds for believing that the
place complies with the general description before the authorization is acted upon is an
additional safeguard to the dictates of s. 178.13. From the perspective of the rights of a
person who is a target of the authorization, if it is reasonable to intercept the
communication of a person at a specified address, it is equally reasonable to intercept his
communication at another place to which he resorts. The nature of the invasion of a
person's privacy does not change with that person's location.
However, while the nature of the invasion of a person's privacy is constant, what changes
with that person's location is the possible effect on third parties. Where the police are
aware, prior to seeking an authorization, that the targets make extensive use of pay
telephones, the authorizations, to comply with s. 8, must at a minimum provide that
conversations at a pay telephone should not be intercepted unless there are reasonable
and probable grounds for believing that a target is using the telephone at the time that the
listening device is activated. The police cannot simply install a listening device and leave
it running indiscriminately in hope that a target may come along. While the failure to
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impose conditions protecting the public interest under s. 178.13(2)(d) of the Code is not
unlawful because the power is discretionary, the failure to do so in the present
circumstances was unreasonable. Therefore, any evidence obtained as a result of
interceptions at pay telephones in the absence of reasonable and probable grounds for
believing that a target was using the telephone was obtained in contravention of s. 8.
Interceptions obtained by means of surreptitious entry into residential premises which
were not specifically mentioned on the face of the authorizations also violated s. 8 of the
Charter. In the absence of express mention of a private residence in the authorizations,
the authorizing judge could not under s. 178.13(2)(d) of the Code impose conditions to
safeguard the public's interest in privacy within the sanctuary of a private dwelling.
Unlawful interceptions -- in the sense of non-compliance with the provisions of Part IV.1
of the Code -- must be excluded under s. 178.16(1) of the Code. Interceptions which fall
within the terms of the Code but nonetheless violate s. 8 of the Charter are inadmissible
only if their admission would bring the administration of justice into disrepute. In this
case, interceptions at places for which the Crown cannot adduce sufficient evidence of
"resorting to" are unlawful and, hence, inadmissible. The interceptions obtained at pay
telephones and residential premises in contravention of s. 8 of the Charter are admissible.
The breach of s. 8 was not deliberate, wilful or flagrant. The police officers acted entirely
in good faith. They were acting in accordance with what they had good reason to believe
was the law at the time. The fact that the telephone number of some of the persons named
in the first authorization was for a pay telephone was before the authorizing judge. The
police acted in accordance with authorizations which complied with the provisions of the
Code. The admission of evidence gathered in these circumstances would not bring the
administration of justice into disrepute.
Per Wilson J. (dissenting): Because the tapping of public pay phones gives rise per se to
massive violations of the rights of third parties to be free from unreasonable searches as
guaranteed by s. 8 of the Charter, an order made pursuant to Part IV.1 of the Code, which
is intended by the judge to authorize the tapping of such phones, must do so expressly
and not by implication under a general "resort to" clause. When the authorizing judge
expressly states in the authorization precisely what he intends to permit the police to do,
he shows on the face of the authorization that he has turned his mind to the extent of the
invasion of privacy sought by the police and has considered whether in the particular
circumstances before him such an invasion is warranted. Unless the issuing authority
does this, it cannot be known under the Wilson regime whether the authorizing judge
exercised a judicial discretion in granting the authorization or whether he intended or did
not intend the "resort to" clause to cover the tapping of public pay phones. The validity of
an authorization made under s. 178.13 of the Code, therefore, should be determined not
by asking whether it can on its face conceivably be construed as authorizing what was
done but by asking whether it is clear from the face of the authorization that the
authorizing judge in fact authorized what was done in the exercise of a discretion based
on all the relevant facts. If that question is answered in the negative, or if there is any
doubt about the answer, then the authorization and the interceptions made pursuant to it
are invalid and the evidence acquired is inadmissible pursuant to s. 178.16(1) of the
Code.
La Forest J.'s reasons on the matters not specifically addressed here were agreed with.
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Per La Forest J. (dissenting): Under the Criminal Code, the "resort to" clauses are not
ipso facto invalid. Section 178.13(2)(c) of the Code gives a judge a discretion to insert
such a clause in an authorization to electronically intercept private communications. This
discretion, however, should not be routinely exercised. Rather, it must be exercised
consistently with the purpose of Part IV.1 of the Code, which is to protect the privacy of
individuals. The discretion must also be read to conform with the Charter. When an
invasion of privacy becomes necessary in the course of an investigation, the police must,
under Part IV.1, seek an authorization and give the judge highly specific information so
that he can properly exercise his discretion to set limits on unnecessary intrusions on
privacy. Section 178.13(2)(c) requires a description of the place of interceptions where
possible and interceptions should accordingly be limited, in all but the narrowest of
circumstances, to places for which information was available at the time of the
application for the authorization. An authorization may properly incorporate a "resort to"
clause, but only where the police are not in a position to give a general description of the
places of interceptions.
Surreptitious electronic interception of private communications constitutes a "search or
seizure" within the meaning of s. 8 of the Charter. These interceptions strike at the heart
of the privacy rights s. 8 is designed to protect. While Part IV.1 of the Code, read as a
whole, is constitutional, the granting of a particular authorization may offend s. 8. A
"resort to" clause does not generally meet the standard of reasonableness set forth in
Hunter for such a clause is effectively a delegation to the police of the discretion which
under the Hunter standard must, where feasible, be exercised by a judge or other
independent person. It is only reasonable to insert a "resort to" clause in those limited
circumstances where Parliament, under Part IV.1 of the Code, intended that a judge could
grant an authorization to intercept communications in an unspecified place. When a
"resort to" clause has been properly included in an authorization, the police must
themselves act reasonably to comply with the high standard set by s. 8. This includes the
duty to act on the basis of reasonable and probable cause in placing intercepts under a
"resort to" clause.
In the present case, the police were aware from the outset that those under investigation
resorted to and made use of pay phones, and that they used a code to advise one another
of the locations where they could be reached. While this type of scheme warrants the
granting of an authorization that includes a "resort to" clause, in spite of the fact that
interceptions could be placed at several known locations, the present authorizations did
not respect the requirements of Part IV.1 of the Code or of s. 8 of the Charter and are
therefore void. Interceptions of public pay phone conversations have serious implications
for the privacy of third parties. The authorizing judge should have directed his mind to
these considerations and exercised his discretion to limit the powers of the police by
setting them out in the authorizations. Nothing in the authorizations indicates any
exercise of the discretion. Simply authorizing the police, in their sole discretion, to use
any electronic means of interception anywhere the suspects may go is incompatible with
the Code and unreasonable under the Charter. This effectively amounts to a failure on the
judge's part to exercise his discretion and a delegation of that discretion to the police. The
authorizations should have made specific reference to pay phones. What the
authorizations permit must not be left to guesswork or interpretation by the police.
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An intercepted communication cannot in itself provide evidence that a person "resorted
to" a particular place, bringing that interception into compliance with the authorizations.
The existence of extrinsic evidence is always necessary.
The police should have applied for renewals instead of fresh authorizations with respect
to the persons and addresses stated in the first authorization. On a proper interpretation of
s. 178.13 of the Code, an application for renewal should be made if continued
surveillance is contemplated and fresh authorizations should be sought only with respect
to persons or places added to the investigation. Section 178.13(3) has been carefully
tailored to permit a judge to assess whether the electronic search should continue or
whether it has become overly prolonged and unwarranted. Accordingly, as regards the
persons and places contemplated in the first authorization, any evidence gained during
the course of the subsequent authorizations is inadmissible. The second and third
authorizations may be severed, however, and, if otherwise lawfully obtained, are valid in
respect of the persons and places therein added.
The information obtained from the pay phones known at the time of the second and third
authorizations is inadmissible. A "resort to" clause cannot cover specific locations that
are already known by the police. Under s. 178.13(2)(c) of the Code, Parliament requires
that a description of the place of interception must be given to the judge authorizing the
interception where this is possible at the time. To ignore this requirement defeats
Parliament's intention that electronic invasions of privacy, necessary in the interests of
law enforcement, be authorized by a judge. Further, for an authorization to comply with
s. 8 of the Charter, all the proposed places of interception known to the police when the
application is made must be described in reasonably specific terms. If a place is
intercepted under a "resort to" clause following that authorization, it must similarly be
described in any subsequent authorization or renewal. It is incumbent on the police, as
agents of the state, to supply this information. There is no question that it was feasible in
this case for the police to supply the information regarding the pay phones they had
already "bugged" when they applied for the second and third authorizations. These
authorizations fail to meet the Hunter requirement that a search and seizure requires preauthorization by a judicial officer where this is feasible, and are therefore unreasonable.
Interceptions obtained by means of surreptitious entry into residential premises which
were not specifically mentioned on the face of the authorizations also violated s. 8 of the
Charter. There is a clear distinction between a breach of privacy occasioned by an
interception accompanied by surreptitious entry and one that is not. Surreptitious entry
strikes at a right that, though bound up to some degree with the privacy rights protected
by Part IV.1 of the Code, is nevertheless an independent and distinct right. Given that two
distinct constitutionally protected interests are engaged when surreptitious entry is
effected pursuant to an authorization to intercept private communications under s.
178.13(1) of the Code, it follows that invasion of either right should be countenanced
solely on the basis of the Hunter standard. Accordingly, the authorizing judge must be
placed in a position to consider the matter.
Since the evidence in this case was obtained in violation of the provisions of Part IV.1 of
the Code, it is inadmissible under s. 178.16 of the Code. It is thus unnecessary to consider
whether the admission of this evidence would be also inadmissible for breach of the
Charter under circumstances that would bring the administration of justice into disrepute
as provided by s. 24 of the Charter.
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R. v. Debot [1989] 2 S.C.R. 1140: Reasonableness of search -- Right to counsel
-- Admissibility of evidence if obtained in circumstances in violation of Charter
rights -- Appellant frisked in warrantless drug search -- Search ordered following
tip from reliable informant -- Drugs found and appellant arrested -- Appellant
informed of his Charter rights, including right to counsel, on arrest -- Whether or
not search reasonable -- Whether or not right to counsel infringed -- Whether or
not real evidence obtained in search should be excluded from evidence
Present: Dickson C.J. and Lamer, Wilson, Sopinka, and Cory JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Reasonableness of search -- Right to counsel -Admissibility of evidence if obtained in circumstances in violation of Charter rights -Appellant frisked in warrantless drug search -- Search ordered following tip from reliable
informant -- Drugs found and appellant arrested -- Appellant informed of his Charter
rights, including right to counsel, on arrest -- Whether or not search reasonable -Whether or not right to counsel infringed -- Whether or not real evidence obtained in
search should be excluded from evidence -- Canadian Charter of Rights and Freedoms,
ss. 8, 10(b), 24(2) -- Food and Drugs Act, R.S.C. 1970, c. F-27, s. 37(1)(a),(b).
Criminal law -- Searches -- Appellant frisked in warrantless drug search -- Search
ordered following tip from reliable informant -- Search permissible if reasonable belief
that offence was committed -- Whether or not police had reasonable and probable
grounds to believe offence committed -- Food and Drugs Act, R.S.C. 1970, c. F-27, s.
37(1)(a),(b).
A reliable informant informed the police that the appellant and two others were going to
meet to complete an illegal drug deal and take delivery of substantial amount of speed
being brought into the area by a supplier. The informant had obtained this information in
conversation with one of the persons who was to be a party to the deal. All the
individuals named were known by the police to have had an involvement with drugs in
the past.
Two officers, on orders from an R.C.M.P. sergeant, intercepted and searched appellant's
vehicle shortly after it left the house where the transaction was to occur. A constable told
appellant that he had reasonable and probable grounds to believe that the appellant had
speed on him and proceeded with a warrantless search as authorized by s. 37(1) of the
Food and Drugs Act. The appellant was ordered to assume a "spread eagle" position and
told to empty his pockets. A quantity of speed was found. The constable placed the
appellant under arrest and advised him of his Charter right to counsel.
The trial judge acquitted the accused. He found the search to be unreasonable contrary to
s. 8 of the Charter and excluded the evidence under s. 24(2). The Court of Appeal
unanimously allowed the Crown's appeal and ordered a new trial. The circumstances of
the search raised Charter issues as to the reasonableness of the search under s. 8, the right
to counsel under s. 10(b), and the exclusion of evidence under s. 24(2).
Held: The appeal should be dismissed.
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Per Dickson C.J. and Lamer and Cory JJ.: The right to search incident to arrest derives
from the fact of arrest or detention of the person. The right to retain and instruct counsel
derives from the arrest and detention, not from the fact of being searched. The detainee,
therefore, has the right to be informed of the right to retain and instruct counsel
immediately upon detention. The police, however, are not obligated to suspend the search
incident to arrest until the detainee has the opportunity to retain counsel.
Denial of the right to counsel will result in a search's being unreasonable contrary to s. 8
of the Charter in only exceptional circumstances. A search is reasonable if it is authorized
by law, if the law itself is reasonable and if the manner in which the search was carried
out is reasonable. The denial of the right to counsel does not affect the "manner" in which
the search is conducted. The "manner" in which the search is conducted relates to the
physical way in which it is carried out and should not be inclusive of restrictions of other
rights that already receive the benefit of the Charter's protection.
Evidence obtained by way of a search that is reasonable but contemporaneous with a
violation of s. 10(b) of the Charter will not necessarily be admitted under s. 24(2).
Evidence will be excluded if there was a temporal link between the infringement of the
Charter and the discovery of the evidence, and if the admission of the evidence would
bring the administration of justice into disrepute.
Here, the "frisk" search authorized by s. 37 of the Food and Drugs Act was carried out
contemporaneously to a violation of appellant's s. 10(b) rights under the Charter. The
evidence obtained, however, was real evidence and its existence was totally unrelated to
the Charter violation. The repute of administration of justice would not be harmed by the
admission of this evidence.
Per Wilson J.: A search will be reasonable if it is authorized by law, if the law itself is
reasonable, and if the manner in which the search was carried out is reasonable. No
question was raised as to whether s. 37 of the Food and Drugs Act was, either by
necessary implication or through its operating requirements, irreconcilable with s. 8 or s.
10(b) of the Charter so as to constitute limits on those rights "prescribed by law" under s.
1. The appellant's Charter rights therefore had to be respected.
When police officers order someone to stand "spread eagle" against a wall, that person is
"detained" within the meaning of s. 10. In light of the fact that the arresting officers were
instructed in advance to stop and search the vehicle and its occupants, the appellant was
detained from the time he was approached by the constable.
Counsel's role is not limited to advising a suspect of his or her options where such
options exist. The suspect is entitled to know what his legal rights and obligations are and
to have counsel available to dispel uncertainty and provide assurance to the suspect that
the officers do have the authority they are seeking to assert. The right to counsel is not
contingent on a hypothetical assessment of whether or not counsel would be useful to the
suspect in the circumstances.
The direction in s. 10(b) that the police inform a detainee of his or her rights to counsel
"without delay" does not permit of internal qualification. Any limit on the right to
counsel, other than the limit required for the safety of the police, must be supported under
s. 1 of the Charter if it is a limit "prescribed by law" which was not the case here.
The police had reasonable and probable grounds to search the appellant under the
authority granted to them under s. 37 of the Food and Drugs Act. The appropriate
standard is one of "reasonable probability" rather than "proof beyond a reasonable doubt"
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or "prima facie case". The phrase "reasonable belief" also approximates the requisite
standard.
The police officer who decides that a suspect should be searched is the person who must
have reasonable and probable grounds for believing the suspect is committing an offence.
That officer may or may not perform the actual search. If another officer conducts the
search, he or she is entitled to assume that the officer who ordered the search had
reasonable and probable grounds for doing so.
At least three concerns must be addressed in weighing whether or not the evidence relied
on by the police justified a warrantless search. First, was the information predicting the
commission of a criminal offence compelling? Second, where a "tip" originating from a
source outside the police, was that source credible? Finally, was the information
corroborated by police investigation prior to making the decision to conduct the search?
Each factor does not form a separate test. Rather, it is the "totality of the circumstances"
that must meet the standard of reasonableness. Weaknesses in one area may, to some
extent, be compensated by strengths in the other two.
The information received by the police was compelling. It was sufficiently specific to
warrant their attention and did not take the form of bald conclusory statements or "mere
rumour or gossip". Two caveats, however, must qualify the use of reputation as germane
to the issue of a reasonable search. First, the reputation of the suspect must be related to
the ostensible reasons for the search. And second, if the reputation of the suspect is based
on hearsay rather than police familiarity with the suspect, its veracity cannot be assumed.
The police here appear to have relied on both direct experience and hearsay.
The informant whose credibility is most critical is the one who provided the details of the
anticipated transaction. The evidence of previous dealings with the informant in this case
tended to validate the decision to treat the informant as credible. Where the police rely on
an anonymous tip or on an untried informant, the quality of the information and
corroborative evidence may have to be such as to compensate for the inability to assess
the credibility of the source.
The police need not confirm each detail in an informant's tip so long as the sequence of
events actually observed conforms sufficiently to the anticipated pattern to remove the
possibility of innocent coincidence. The level of verification required, however, may be
higher where the police rely on an informant whose credibility cannot be assessed or
where fewer details are provided and the risk of innocent coincidence is greater. Given
the quality of the information and the reliability of the informant, the police surveillance
yielded sufficient corroborative evidence to warrant the belief that a drug transaction had
occurred.
A detained person cannot be assumed to be fully apprised of all his Charter rights at the
critical moment and, without knowledge of those rights, may fail to exercise his rights or
may attempt to resist in a mistaken belief that the police conduct was not lawful when in
fact it was. The police cannot appropriately provide legal advice regarding the legitimacy
of their own actions. An individual must rely on counsel to supply the vital information.
The question of whether a denial of the right to counsel renders a search unreasonable
depends on two factors: (1) the source of authority for the search; and, (2) the
invasiveness of the search. The failure to advise an individual of his or her right to
counsel detracts more from the reasonableness of a warrantless search than from a search
subject to prior authorization. The more invasive the search, the greater the assault on
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one's dignity. To the extent that counsel can provide reassurance and advice to a person
who may be subjected to a highly invasive procedure and perhaps even prevent an
unjustified search, his or her presence can mitigate the impact of the intrusion on the
individual's physical and psychological integrity. Here, the failure to accord the appellant
his s. 10(b) rights militated against the reasonableness of the warrantless search and the
minimal nature of the invasion of his privacy from the "frisk" type search militated in
favour of its reasonableness.
The evidence should be admitted notwithstanding the Charter violation. The search
following the violation of appellant's s. 10(b) rights produced real evidence which was
totally unrelated to the Charter violation. Its admission would not render the trial unfair.
The police had not acted in bad faith in thinking that respondent did not have to be
informed of his s. 10(b) rights before being searched. The violation of appellant's right
was not trivial but the "interests of truth" and the "integrity of the legal system" would be
better served by the admission of the evidence than by its exclusion.
Per Sopinka J.: The police were under no obligation to advise the appellant of his right to
counsel before completing the "frisk" search. Where the obligation to inform a person of
his or her right to counsel arises, there is an obligation to afford that person a reasonable
opportunity to consult counsel. If the circumstances surrounding a search incidental to an
arrest do not lend themselves to the delay inherent in making counsel available, they are
equally not conducive to the reading of rights. This Court has recognized that the right to
retain and instruct counsel without delay is not absolute. The right to be informed of the
right to counsel need not be accorded different treatment.
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