 |
| 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.
The Supreme Court of Canada in Mills recognized that complainants have a reasonable expectation of privacy in many third party records. This expectation of privacy is so significant that sections 278.1 to 278.91 now make the task of obtaining most third party records of a complainant in criminal proceedings very difficult.
Concerning the concept of waiver, the Supreme Court of Canada has rendered two decisions that merit careful consideration. In Stone the court found that defence counsel waived privilege in regards to an expert’s report when counsel referred to its contents in his opening address to the jury. As well, the court held that privilege is waived when the expert is called to testify by the defence.
Similarly, in R. v. Campbell and Shirose the court held that privilege is waived where a “good faith” defence is advanced based on the legal advice obtained. Here, an RCMP officer who had organized a reverse sting operation, testified that he received legal advice from the Crown concerning the legality of the sting operation and thereby acted in good faith. The court held that, in these circumstances, privilege was waived, at least to the extent of determining whether the officer did, in fact, receive that legal advice.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
Subscribe to Patrick Ducharme's Youtube Channel