Case Report – Alta. C.A. says “chewing gum survey” does not cause an unreasonable search

On May 11th, the Alberta Court of Appeal held that a defendant abandoned an expectation of privacy in his DNA by depositing chewing gum into a paper cup provided by an undercover officer who had asked him to participate in a “gum survey.” It rejected the defendant’s argument that spitting something out into a receptacle (as opposed to an environment that would promote anonymity) did not demonstrate abandonment. (Wouldn’t the opposite be true?) It also held that the police set up was neither a trick that warranted sanction nor was it an act that affected the Crown’s abandonment claim: “The act of the officer holding out the Dixie cup did not cause the appellant to discard the gum; it merely provided an opportunity for the police to collect it.”

R. v. Delaa, 2009 ABCA 179 (CanLII).

Case Report – BCCA says non-occupant has standing to challenge search warrant

In a fact-driven award released on January 2nd, the British Columbia Court of Appeal held that an accused person who did not occupy premises discovered to be a grow operation had standing to challenge a search of the premises.

The accused lived elsewhere, but the Court inferred possession and control from evidence showing the accused was the owner, possessed keys and was seen there on a few occasions in the two weeks before the search. It held that the trial judge erred in denying standing merely because the accused was not an occupant and that based on possession and control and all the circumstances, the accused had a reasonable expectation of privacy that he was entitled to exercise.

R. v. Vi, 2008 BCCA 481 (CanLII).