Category: articles

Patrick Ducharme

In these three cases the Supreme Court of Canada clarified, and arguably reduced significantly, the protections afforded people detained while being interrogated. Nevertheless these cases outline the obligations imposed upon the police in such detentions and also attempt to define the limits upon police activity when encounters between the police and individuals rise to the level of at least detention, if not arrest.

Continue reading “Oickle, Singh and Sinclair: The Confessions Rule”

Patrick Ducharme

FLIR imaging is not the equivalent of an entry to premises that is under surveillance. Rather, it is more accurately characterized as an external surveillance of a home or place to obtain information that may be capable of supporting an inference about what actively is going on inside. Consequently, in its present form, FLIR imaging cannot permit any inferences about the precise activity occurring inside simply by measuring the heat that emanates from a home or other place. Context is important here. Everything shown in an FLIR photograph exists on the external surfaces of the building. Thus, the technology does not infringe or intrude upon a person’s reasonable expectation of privacy.

Continue reading “J. FLIR Technology”

Patrick Ducharme

There are three categories of border searches:

1) routine questioning that often involves a search of baggage and a pat-down frisk or the use of an electronic wand;
2) strip searches conducted in private after a secondary examination and with the approval of a customs officer in authority;
3) body cavity searches where customs officers use medical doctors or x-rays or other highly intrusive means to conduct the search.
Each of these categories of search is separate and discreet. They are not points on a continuum. In any event, a traveler’s reasonable expectation of privacy is reduced considerably when crossing international borders.

Continue reading “Border Searches”

Patrick J Ducharme

There is no requirement for a search warrant prior to a courthouse search carried out under an enabling provincial statute. There are several factors that lead to the conclusion that a search warrant is not required. These factors include the fact that courthouse searches are not carried out for the purpose of a criminal investigation, and, there is a diminished expectation of privacy for persons attending courthouses. The searches are carried out for the protection of all persons including those persons that are searched.1

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.

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Patrick Ducharme

In R. v Jarvis1 and R. v. Ling2 the Supreme Court of Canada held that where the predominant purpose of the inquiry is the determination of a penal liability, officials must relinquish their authority to use inspection and requirement powers given to them under regulatory schemes such as the Income Tax Act. The issue becomes whether the predominant purpose of the regulatory investigator at the time the evidence is gathered is to attempt to determine penal liability. If regulatory investigators are pursuing a purpose that is predominantly penal in nature, then the Charter principles under sections 7 and 8 are available to challenge the search or seizure. If, on the other hand, regulators gather information while predominantly pursuing a regulatory objective, there is no general rule precluding passing information so discovered to criminal investigators. The questions to be answered are as follows:
Continue reading “Regulatory Searches”

Patrick J Ducharme

Continued from “School Searches (Part 4)”

The Supreme Court of Canada in Morelli6 set aside a conviction and entered an acquittal on a charge of possession of child pornography and held that merely viewing a web browser and images stored in a remote location on the Internet did not establish the level of control necessary to find possession. Possession of illegal images required possession of the underlying data files in some way. But more importantly, the court commented on the responsibility of police officers when their search relates to computer information.
Continue reading “School Searches (Part 5)”

Patrick J Ducharme

Continued from School Searches (Part 3)

Current conditions require that teachers and school administrators be provided with the flexibility needed to deal with discipline problems in schools and to be able to act quickly and effectively. One of the ways in which school authorities may be required to react reasonably is by conducting searches of students and seizing prohibited items. Where the criminal law is involved, evidence found by a teacher or principal should not be excluded because the search would have been unreasonable if conducted by the police.
Continue reading “School Searches (Part 4)”

Patrick Ducharme

To establish a violation of section 8 of the Charter, the accused must first establish a reasonable expectation of privacy with respect to the relevant place. Given that the search was of the accused’s person, the existence of a subjective expectation of privacy and the objective reasonableness of that expectation are important. A subjective expectation of privacy with respect to one’s person has been historically recognized and is reasonable. It is not rendered unreasonable merely by the student’s presence at school.
Continue reading “School Searches (Part 3)”

Patrick Ducharme

In M. (M.R.)3 the Supreme Court of Canada was confronted with the circumstances of the junior high school vice-principal who had been provided with reasonably reliable information from students that the accused, a student, was intending to sell drugs at a school function on school property. He asked the accused and his companion to come to his office where he asked each if they were in possession of drugs and advised them that he was going to search them. A plain-clothed RCMP constable, called by the vice-principal pursuant to school policy, was present but said nothing while the vice-principal spoke to the students and searched them. The vice-principal seized a hidden cellophane bag of marijuana and gave it to the constable who advised the accused that he was under arrest for possession of a narcotic. The constable read to him the police caution and his right to counsel, and advised him that he had the right to contact a parent or adult. The accused attempted unsuccessfully to reach his mother by phone and stated that he did not wish to contact anyone else. The constable and the accused then went to the accused’s locker and searched it but nothing was found there.
Continue reading “School Searches (Part 2)”

Any search conducted by school authorities must be reasonable. It must be authorized by statute and appropriate in all the circumstances. The factors to be considered in deciding whether a search conducted by teachers or principals in response to information received is reasonable are:
48 whether the relevant legislation (in Ontario the Education Act) provides authorization for such searches in appropriate circumstances;
49 if the search itself was carried out in a reasonable manner, sensitive to all circumstances and minimally intrusive.1

Continue reading “School Searches”