Month: February 2025

Patrick Ducharme

While solicitor-client privilege is a principle of fundamental importance to the administration of justice, the privilege is not absolute. Sometimes the court will order disclosure to protect an accused’s right to full answer and defence. But the test is a stringent one. The appropriate test is the “innocence at stake” test. Solicitor-client privileged information should only be revealed where core issues are involved, directly concerning the guilt of the accused, with a genuine risk of wrongful conviction.
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Patrick J Ducharme

The United States’ Supreme Court established that 4th Amendment rights do not extend to unoccupied lands. Significantly, our courts have refused to follow that lead. In Lauda the Ontario Court of Appeal concluded that Canadians do have an expectation of privacy in unoccupied lands and that expectation is reasonable. Accordingly, the court found that the “open-fields doctrine” offends section 8 of the Charter and does not form part of the law of Canada. The court concluded that the trial Judge erred in relying on the doctrine to find that an appellant did not have a reasonable expectation of privacy in the leasehold property in question.
Continue reading “Expectation of Privacy: The US 4th Amendment”

Patrick Ducharme

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

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

Patrick Ducharme

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

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

Patrick J Ducharme

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

Patrick Ducharme

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

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