R. v. Hamdan

R. v. Hamdan

The court ordered evidentiary hearings (voir dires) on the alleged s.7 and s.8 Charter breaches because the defence established a reasonable basis for each, the Crown conceded a s.8 breach and denied s.7 but could not preclude relevance, and findings on those breaches are necessary to assess any s.24(2) remedy given the low threshold for voir dires under Vukelich/Mehan and the prior s.10(b) breach.

Citation
2017 BCSC 562
Parties
Crown: Regina; Accused: Othman Ayed Hamdan
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
4 April 2017
Procedural Posture
Criminal Charter Application / Vukelich Hearing/voir Dire to Determine S.7 and S.8 Breaches
Outcome
Voir dires ordered on alleged s.7 and s.8 Charter breaches; consideration of any s.24(2) remedy deferred pending findings
Legal Topics
Section 7 Charter, Section 8 Charter, Section 10 Charter, Section 24(2) Charter, Search and Seizure, Voir Dire (vukelich), Publication Ban
Source Language
English
Constitutional Law Criminal Law Evidence Section 7 Charter Section 8 Charter Section 10 Charter Section 24(2) Charter Search and Seizure +2 more

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Parties

Regina

Crown

Othman Ayed Hamdan

Accused

Procedural Posture

Criminal Charter Application / Vukelich Hearing/voir Dire to Determine S.7 and S.8 Breaches

Legal Issues

  1. 1 Whether s.7 Charter rights were breached by loss or destruction of evidence when Facebook posts were captured without forensic-grade software
  2. 2 Whether s.8 Charter rights were breached by unauthorized access to the accused's email accounts
  3. 3 Whether there is a sufficient basis to conduct voir dires under the Vukelich test

Ratio Decidendi

The court ordered evidentiary hearings (voir dires) on the alleged s.7 and s.8 Charter breaches because the defence established a reasonable basis for each, the Crown conceded a s.8 breach and denied s.7 but could not preclude relevance, and findings on those breaches are necessary to assess any s.24(2) remedy given the low threshold for voir dires under Vukelich/Mehan and the prior s.10(b) breach.

Court Disposition

Voir dires ordered on alleged s.7 and s.8 Charter breaches; consideration of any s.24(2) remedy deferred pending findings

Orders

  • Conduct evidentiary hearings (voir dires) to determine the existence and nature of any s.7 Charter breach relating to Facebook evidence
  • Conduct evidentiary hearing (voir dire) to determine the existence and nature of any s.8 Charter breach relating to unauthorized access to email accounts