Issue #183

February 8, 2002


Residual privacy interest in documents seized from stolen safe owned by Accused



In R. v. Law, 2002 SCC 10, the Supreme Court of Canada overturned the New Brunswick Court of Appeal decision by finding that the appellants did have a reasonable expectation of privacy in the documents that were found in a safe which was reported stolen.  Once such a privacy was found to exist, thereby triggering s. 8 of the Charter, the Court further held that the search by the police was unreasonable and ordered that the documents be excluded pursuant to s. 24(2) of the Charter. 




The appellants were directors of a company which operated a restaurant in Moncton.  A break and enter occurred at the restaurant and the police were subsequently notified of the theft and the resulting missing safe.  The safe was recovered by local RCMP officers after two individuals reported seeing the safe open and abandoned in a field.  The safe contained a number of financial documents relating to the restaurant. 


Prior to the safe and its contents being released to the appellants, Desroches, an officer not involved in the theft investigation, expressed an interest in the contents of the safe.  Desroches had been suspicious of the appellants but admitted at the voir dire that he could not substantiate his suspicions of wrongdoing.  He only had a “gut feeling” that they were not submitting all their taxes.   


Desroches ultimately took the documents from the safe and photocopied them.  He kept several copies for himself and placed the original documents in a box in an exhibit room.  No steps were taken to obtain a search warrant, nor to ask the appellants for their permission to copy the documents.  After photocopying the documents, Desroches met with a Revenue Canada investigator at the police station.  Desroches took the box of documents out of the exhibit room without signing for them.  The officer responsible for these documents was not notified of the movement of these items which was contrary to normal police procedures.  Desroches also did not make entries in the “exhibit movement” record. 


Based upon the information contained in the documents, Revenue Canada investigators searched the appellant’s restaurant which ultimately resulted in the appellants being charged with several offences contrary to the Excise Tax Act. 


Following a voir dire, the provincial court judge ruled that the photocopying of the documents was an unreasonable search and seizure and excluded them at trial.  The appellants were acquitted.  The trial judge’s decision was upheld by the Court of Queen’s Bench.  However, the majority of the New Brunswick Court of Appeal overturned the ruling.  Their view was that once the documents fell into the hands of thieves and other individuals, the appellants’ reasonable expectation of privacy no longer existed.


Judgment of the S.C.C.


While the taking of the safe was authorized in that the appellants reported its theft to the police, the real issue as expressed by the Court was whether the appellants retained a reasonable expectation of privacy in the contents of the safe.  Continuing its  liberal approach to the protection of privacy, the Court made the following findings at para. 18:


In this case, the appellants did not voluntarily discard their private documents.  On the contrary, the documents were locked in a safe that was stolen out of their place of business and left abandoned by the thieves in an open field.  Moreover, the theft of the safe was reported to the police the morning it occurred, well before it was recovered.  One can therefore infer the existence of a subjective expectation of privacy: Edwards, supra.  In this entire context, I cannot but conclude that the appellants retained a residual, but limited, reasonable expectation of privacy in the contents of their stolen safe.  In short, one would have expected the stolen property to remain private following recovery, as it was before its theft.



The Court went on to state to qualify this residual privacy interest by stating that it should not undermine the police’s obligation to investigate the theft or to carry out whatever law enforcement responsibility is reasonably associated with its taking.  The expectation of privacy must be reasonable.  One example given was that of an unattended suitcase which may have to be inspected for explosives.  The Court then cautioned that “where the police cannot reasonably conclude the property has been abandoned by its owner, they are limited in their investigation by the privacy interest of the owner as protected by s. 8 of the Charter.” (para. 19)  In this case, the police were restricted to the investigation of the theft and not authorized to pursue totally unrelated hunches.


While the appellants would have been expected a certain degree of state intrusion into the stolen safe such as a fingerprint analysis, a security check, or an investigation into the identification of the perpetrator of the theft, the appellants would otherwise have expected the contents of the safe to remain private. (para. 28)


In the absence of prior judicial authorization and the lack of reasonable and probable grounds to suspect the appellants of GST violations, the Court concluded that the search was unreasonable.    The Court also held that Desroches could not rely upon the plain view doctrine to establish reasonable and probable grounds or to avoid the requirement of reasonable and probable grounds.  It was not immediately obvious to Desroches that the documents were incriminating.  This only came to light after he examined, translated and photocopied several documents. 


Since the documents were viewed as non-conscriptive evidence, the Court held that the trial fairness branch of the Collins test would not operate to exclude the evidence.  However, the Court did exclude the evidence after consideration of the seriousness of the Charter breach and whether it outweighed the State’s interest in admitting the evidence.  The Court deferred to the trial judge’s finding on the issue of the seriousness of the breach:


After reviewing the evidence, McKee Prov. Ct. J. concluded that Corporal Desroches’ approach, behaviour and disrespect for regular police procedures rendered his conduct [TRANSLATION] “sufficiently serious” to exclude the photocopied documents.  It appears from the record that Corporal Desroches essentially assumed the role of an Excise Tax official, taking regulatory matters into his own hands when he easily could have left that responsibility to the appropriate body.  It   is highly unlikely that Corporal Desroches misunderstood the scope of his authority.  His disregard for established procedures, combined with his failure to proceed properly when that option was available, are factors supporting the trial judge’s s. 24(4) ruling…” [para38]



The Court finally concluded that the administration of justice would suffer greater disrepute from the admission of the evidence than from its exclusion. 



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The following article appeared in The Globe and Mail, pg A12, on February 4, 2002.


To raise the question of racial profiling


Back when he was a hotshot rookie for the Boston Celtics in 1990, Dee Brown was sitting in his car opening his mail when seven police officers in Wellesley, Mass., mistaking him for a bank robber, ordered him onto the sidewalk at gunpoint.


Only in America?  Inquiries into policing and the justice system in Nova Scotia, Ontario and Manitoba have established that bad things sometimes happen to law-abiding Canadians, especially if they are black or native.  Now the very same Dee Brown is raising uncomfortable issues about race and justice – not in Massachusetts, but in Toronto.  To wit: Are Canadian courts ready to address accusa-tions of racial profiling by police?


Mr. Brown was playing for the Toronto Raptors in 1999, and driving an expensive Ford Expedition, when police charged him with impaired driving.  His lawyer, Steven Skurka, argued at trial that police had pulled him over for “driving while black” – for a suspicion, based on his skin colour, that the vehicle must be stolen.


In support, Mr. Skurka alleged the police ran a licence check before pulling Mr. Brown over.  When the officer learned the car was not stolen, the defence alleged, he went fishing for something else.  Mr. Skurka also alleged that the police officer created a second notebook to justify stopping Mr. Brown.  The police officer denied he could make out Mr. Brown’s race or sex when he pulled him over.


Ontario Court Judge David Fairgrieve was horrified at the allegations of racial profiling.  He called them “nasty, malicious,” said they were based on “nothing” and noted that in a police videotape the officer was not hostile to Mr. Brown.  After finding Mr. Brown guilty of impaired driving, the judge expressed his “distaste” for the accusation of racism and suggested Mr. Brown apologize to the officer.


For the record, Mr. Brown, who has no criminal record, has never been one to “cry racism.”  He described the Boston incident as a misunderstanding, and in a separate matter defended The Wall Street Journal against an allegation of racism involving a teammate.


Whether racial profiling occurred or not in this case, the judge’s response was inexcusable.  In spite of all the inquiries, in spite of the common sense that tells us discrimination exists in Canada and takes many different forms, an argument that there might have been racism could not be put on the table.  After all, didn’t everyone see how polite the officer was?


Thankfully, when Mr. Brown appealed his case, Mr. Justice Brian Trafford on the Ontario Superior Court was willing to probe beneath the politeness.  He said the trial judge’s mind was so closed on this matter that he gave an appearance of bias – a finding that cuts to the heart of the justice system’s integrity.


Judge Trafford made no finding as to whether the police officer had used racial profiling.  But in dismissing Mr. Brown’s conviction and ordering a new trial, he said the defence had enough evidence to make a legitimate argument.  How then, he wrote, could the judge ask Mr. Brown to apologize for seeking a fair trial?  He also said Judge Fairgrieve did not understand the nature of racial profiling.  Even polite officers might engage in it unconsciously.


True, allegations of discrimination should not become a shield for every minority individual who enters a courtroom.  But profiling is far more subtle than a bunch of officers beating a Rodney King.  And Canadian judges should not avert their eyes from the evidence when it is raised.



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The following article appeared in The Washington Posted, pg A24,

dated February 1, 2002.


A Surprise From the Court


In recent years, the Supreme Court hasn’t been a friendly forum for those who claim to be wrongly convicted.  With a zeal that may have led to the execution of some innocent people, the court’s conservatives have erected procedural barriers to convicts’ getting their constitutional claims heard in federal court.  The lower courts, picking up on the trend, have gone even further, meaning that a lot of defendants – some of whose trials were enragingly inadequate – can’t get a hearing.  Against this backdrop, the high court’s opinion last week in a case called Lee v. Kemna comes as a welcome counterweight.  It is particularly so because Chief Justice William Rehnquist – one of the count’s stauncher conservatives – joined a six-member majority in holding that a defendant’s noncompliance with a picayune state procedural rule should not preclude the federal courts from reviewing his shaky conviction.


Remon Lee was sentenced to life without parole by a Missouri court for allegedly driving a getaway truck during a 1992 murder.  In his trial the state put on the stand two eyewitnesses to the crime, and some other witnesses claimed Mr. Lee, contrary to his denials, was in Kansas City during the relevant period.  Mr. Lee had intended to present an alibi defense claiming he was in California with family at the time of the killing.  Three close relatives came to Missouri to testify.  Yet on the day they were to take the stand, all disappeared from the courthouse, though they were under subpoena.  (All have since claimed that a court official told them their testimony would not be needed that day.)  Mr. Lee requested a delay, so that his witnesses – who constituted the entirety of his defense – could be located.  But the judge refused, saying that he would be busy the following day caring for his daughter at a hospital and had another trial to conduct the following work day.  As a result Mr. Lee could not present a defense, and he was swiftly convicted.


This is about as blatant as due process violations get.  Mr. Lee had a right under the Constitution to present a defense.  He also had a right to call witnesses.  Both of these rights were denied him, through no fault of his own.  Yet the Missouri courts and a federal court of appeals refused even to consider whether his trial had been constitutionally deficient.  The reason?  Mr. Lee’s request for a trail delay had been oral, not in writing, and had contained some other technical deficiencies.  And while these had not bothered the prosecutor or the judge at trial, they constituted a procedural default of his constitutional claims; his possible innocence was immaterial; as far as the lower courts were concerned, Mr. Lee should spend the rest of his life in prison.


Acting as his own lawyer, Mr. Lee asked the Supreme Court to step in, and to its credit, the court did so.  In an opinion by Justice Ruth Bader Ginsburg, the justices rightly insisted that federal defence to state court rules – though extensive – has limits.  The court did not order a new trial for Mr. Lee.  It did, however, hold that the lower courts now must consider his due process claims; they cannot forgo all review on the basis of Mr. Lee’s technical noncompliance with Missouri rules.  Justice Ginsburg strove to cast her decision as consistent with prior case law.  But the flexible, nondoctrinaire approach the court took in this case is a refreshing change.  It is a mark of how deferential the court has been to grossly inadequate state trials that this decision – which shouldn’t have been a tough one – comes as such a pleasant surprise.



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The following article appeared in The New York Times, dated February 6, 2002.


Convict’s DNA Sways Labs, Not a Determined Prosecutor


By Sara Rimer


PHILADELPHIA, Feb. 5 – In the summer of 1986, two women who did not know each other were raped in the same housing complex in King of Prussia, a suburb of Philadelphia.


In May 1987, Bruce Godschalk, 26, who had been working for a landscaper, was convicted of both rapes, largely on the basis of a confession to detectives that he recanted long before his trial.  He was sentenced to 10 to 20 years in prison. 


Recent tests by two laboratories hired by the prosecution and the defense came up with the same results: both rapes were committed by the same man, and the man was not Bruce Godschalk.


Even so, the Montgomery County district attorney, Bruce L. Castor Jr., whose office convicted Mr. Godschalk, has refused to let Mr. Godschalk out of prison, saying he believes that Mr. Godschalk is guilty and that the DNA testing is flawed. 


Asked what scientific basis he had for concluding that the testing was flawed, Mr. Castor said in an interview today:  “I have no scientific basis.  I know because I trust my detective and my tape-recorded confession.  Therefore the results must be flawed until someone proves to me otherwise.”


The case highlights the difficulty of people in prison in obtaining DNA tests.  Mr. Godschalk fought for seven years for DNA testing, with Montgomery County prosecutors battling against him and state judges backing the prosecutors, said Mr. Godschalk’s lawyer, Peter Neufeld, of the Innocence Project of the Cardozo School of Law in New York City.


Last August a federal district judge in Philadelphia, Charles R. Weiner, found that Mr. Godschalk had a constitutional right to post-conviction DNA testing, and ordered Mr. Castor to release the evidence for testing.  (Last week, faced with a similar question in a Virginia rape, the United States Court of Appeals for the Fourth Circuit came to the opposite conclusion, overturning a decision by a district judge who had ordered testing for an inmate.)


Mr. Castor then retained the Cellmark Diagnostics Laboratory in Maryland.  Mr. Neufeld said Cellmark divided the evidence, retaining half of it to test, and sending half of it to Dr. Edward Blake, a forensics expert retained by the defense.


DNA testing has freed more than 100 wrongfully convicted people in the last decade, with about a fifth of those convictions resulting from false confessions.


Mr. Godschalk’s only prior arrest record was for possession of four grams of marijuana and driving while impaired, said David Rudovsky, a Philadelphia lawyer who is Mr. Godschalk’s co-counsel.  His photo was in police files because of the marijuana arrest.


Six months after the two rapes, with no arrests in the case, Mr. Godschalk’s picture was one of an array of mug shots of possible rapists shown to one of the victims by a police detective, Bruce Saville, from Montgomery County.  After studying the photos for more than an hour, the victim identified Mr. Godschalk as her rapist, Mr. Neufeld said.  The second victim could not make an identification.


After several hours of interrogation by Mr. Saville, Mr. Godschalk made a taped confession.  Mr. Saville did not tape the hours leading up to the confession, Mr. Rudovsky said.


Mr. Godschalk later said he had given a false confession because the detective had threatened him and provided inside information to make his confession appear more credible, Mr. Rudovsky said.  His motion to suppress the confession was denied during the trial, and the confession was upheld by the Pennsylvania Supreme Court.


Mr. Rudovsky has asked the trial judge in Mr. Godschalk’s case, S. Gerald Corso, to release Mr. Godschalk from prison immediately because the DNA tests proved that “he is factually innocent.”


Mr. Castor has asked the judge for additional time to review the DNA tests and, perhaps, to conduct further testing.


Dr. Edward Blake, who is considered a leading forensics DNA expert, and whose Richmond, Calif., laboratory did the DNA testing for the defense, said that the rapist ahd left the same genetic signature in both rapes.  That signature, he said, “is expected to occur in no more than a few human beings who have ever lived.”  I was not Mr. Godschalk’s signature, he said.


Gary Harmor, a forensics serologist with a well-respected lab in San Francisco, reviewed both the defense and the prosecutor’s DNA test reports today at the request of The New York Times.  “Both profiles match each other, and can only come from one person in the world,” Mr. Harmor said of the tests from the two rapes.  “And that person is not Bruce Godschalk.”


The defense’s DNA report was completed on Jan. 16, the prosecution’s on Jan. 30.


Mr. Neufeld asked Pamela Newall, who recently retired as head of the DNA unit of the Center of Forensics Sciences in Ontario, and is also an accrediting inspector for the American Society of Crime Laboratory Directors, to review the reports today. 


Ms. Newall said that the tests excluded Mr. Godschalk as the rapist. 


Asked what the chances are of laboratory error, Ms. Newall said: “Nonexistent.”


Mark Stolorow, the forensics expert who runs the lab in Germantown, Md., retained by the prosecution, said today that because of client confidentiality he could only talk with a reporter about the test results with the permission of his client, Bruce L. Castor.


Mr. Castor said he would not permit Mr. Stolorow to discuss the results.  “I will talk for the government,” he said.