Author: Patrick Ducharme

Patrick Ducharme

Section 494 of the Code prescribes the powers all persons have, including police officers, to make an arrest of a person without an arrest warrant. Subsection (2) was recently amended to permit an arrest without a warrant if the person making the arrest either finds the person committing a criminal offense in relation to or on that property provided the arrest is made at a time when the person is found committing the offense, or, “within a reasonable time after the offense is committed, and, it is believed on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.
Continue reading “Power of Arrest (Part 2)”

Patrick J Ducharme

In June 2012 a citizen’s power to arrest was expanded. The powers are contained in section 494 of the Code. The changes to section 494 may appear minor, but can have a significant impact in relation to private citizens arresting “within a reasonable time after the offence is committed.” The amendments relax the requirement that an arrest must be made immediately following the commission of the offence but retain the condition that the arrestee is, at the time of arrest, “found committing” a crime. The citizen’s power to arrest for past offences is limited to cases where the police would be unable to arrest the suspect. More specifically the section requires that it “not be feasible in the circumstances for a peace officer to make the arrest.”
Continue reading “Power of Arrest: Private Citizens 494”

The Supreme Court of Canada’s decision in Spencer may be a harbinger for legislation that seeks to avoid judicial scrutiny of searches conducted by law enforcement officials. In this case the police suspected an individual was using the Internet to access child pornography. Without seeking a search warrant, and, purporting to act under the authority of PIPEDA, they obtained from the Internet Service Provider the IP address of the suspect. PIPEDA provisions do not require the authorities to obtain a search warrant.
Continue reading “Expectation of Privacy: R. v. Spencer SCC”

Patrick Ducharme

In Therens the Supreme Court of Canada defined the word “detention” as directed at a restraint of liberty, other than arrest, where a person may reasonably require the assistance of counsel. The word “arrest” is not defined in the Code. The power to arrest by “anyone” or by police officers is provided specifically in sections 494 and 495 respectively of the Code.
Continue reading “Arrest vs. Detention”

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.
Continue reading “Expectation of Privacy: Solicitor-client privilege”

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:
Continue reading “Reasonable Expectation of Privacy”

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”