Understanding Section 8: Search, Seizure and the Canadian Constitution

Windsor Review of Legal and Social Issues
March, 2006

Patrick Ducharme

Criminal Law Specialist Patrick Ducharme
Criminal Law Specialist Patrick Ducharme

Since April 17, 1982 when the Charter of Rights and Freedoms was proclaimed Canadian courts have developed certain principles pertaining to the nature of the Section 8 right to be secure against unreasonable search and This book effectively reviews and ultimately crystallizes those principles in a “reader friendly” manner that will prove valuable to any practitioner making or refuting a Section 8 Application.

The authors adopt a problem-solving approach to the issues surrounding searches and seizures. First, they discuss the fundamental principles of a Section 8 claim. After identifying the general principles applicable to all searches, they then address any exceptions to the general rules and the rationale for those exceptions.

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Thoughts of an Advocate

My work as an advocate has bestowed many benefits. One significant perk is that I have represented some very interesting and colorful characters. These short commentaries are easily documented publicly in newspapers, magazines, books or the Internet. Their public nature makes them quite unlike the private information communicated to a lawyer for obtaining legal advice, and permits commentary on the public aspects of my interaction with these former clients. Each of these individuals enriched my life, by their love of life and by the unique way they approached their role in society. The nineteenth century poet and essayist Matthew Arnold once wrote: “Use your gifts faithfully, and they shall be enlarged; practice what you know and you shall attain to higher knowledge.” In the end, if we are to be true to ourselves and to this noble profession, we need only strive to fulfill this dictum. Continue reading “Thoughts of an Advocate”

Security tape clears Probert

National Post

Bob Probert
Bob Probert

Former NHL tough guy Bob Probert, who was accused of assaulting a police officer at his Lakeshore home, was cleared of criminal charges Friday after a videotape of the July 1 altercation showed he did nothing wrong.

The tape from Probert’s home security system shows he was backing away from police when he was hit in the face with pepper spray, said assistant Crown attorney Tim Kavanaugh.

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Balancing Act

The Drive Magazine, Issue 33.

Community, family anchor defence lawyer’s life

Patrick Ducharme, on the cover of The Drive Magazine
Patrick Ducharme, on the cover of The Drive Magazine

Booker T. Washington, an equal rights advocate and founder of the Tuskegee Institute in Alabama in the late 1800s, once said; “No man who continues to add something to the material, intellectual and moral well-being of the place in which he lives is left long without proper reward.”

Whether or not Mr. Washington was correct in his assumption that the proper reward awaits all community contributors, it is inarguable that it should. It is also inarguable that Patrick Ducharme, criminal defence lawyer extraordinare, is due all the success that surrounds him for the contributions he makes in this community. As a lawyer for nearly 30 years and sessional lecturer for the faculty of law at the University of Windsor for close to 25 years, Ducharme’s contributions have been moral, intellectual, material and abundant. Continue reading “Balancing Act”

Co-Operation as Mitigating Factor on Sentence

By Patrick J. Ducharme. Prepared for The Law Society of Upper Canada, 5 th Annual Six-Minute Criminal Defence Lawyer Series, June 4, 2005, Toronto, Ontario.

He that hath deserved hanging may be glad to escape with a whipping.
Thomas Brooks

Introduction

In Canada, co-operation by the accused with police and prosecutors has long been considered a mitigating factor in sentencing. 2 However, failure to co-operate with the authorities should not serve as an aggravating factor. 3 Co-operation is usually defined as the willingness of the accused to assist the authorities in the investigation or prosecution of others. The co-operation may take an infinite variety of forms, including, for example, participating in a “sting” operation or a controlled delivery of drugs or testifying for the
prosecution in court, or providing information anonymously to the police concerning the criminal activity of others. Continue reading “Co-Operation as Mitigating Factor on Sentence”

Evidentiary Issues in Drug Cases

By Patrick Ducharme, prepared for the Ontario Bar Association’s 2005 Institute of Continuing Legal Education, Toronto, Ontario

Introduction

My task today is to address evidentiary issues generally considered unique or at least important to drug cases. The best and most obvious place to begin is with the empowering statute, the Controlled Drugs and Substances Act (the “CDSA”) Proclaimed into force in May, 1997, the CDSA codifies all drug offences in Canada.

The Concept of Possession

Included in the CDSA are six Schedules identifying all the particular substances
and precursors declared illegal by this legislation. In section 2, the definitions section, possession is defined as meaning “possession” within the meaning of subsection 4(3) of the Criminal Code. 3 Consequently, we look to that provision for our definition:

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Ducharme and Strosberg Splitting Up

Harvey Strosberg and Patrick Ducharme. Photo credit: Law Society Gazette

WINDSOR – Two leading southwestern Ontario lawyers, who’ve established something of national reputations and have worked together in the same firm for 15 years, will be going their separate ways by the end of the year.

Litigator Harvey Strosberg will remain where he is at Sutts Strosberg. But Pat Ducharme, known best for his criminal work, will be taking a group of lawyers to a new practice known as Ducharme Fox. With him will be Mary Fox, a leading family law lawyer. Continue reading “Ducharme and Strosberg Splitting Up”

Farewell to the Firm

Amicable divorce splitting powerhouse legal team.

Patrick Ducharme and Harvey Strosberg. Photo credit: Law Society Gazette
Patrick Ducharme and Harvey Strosberg. Photo credit: Law Society Gazette

Through their office doors have walked kings of government, captains of industry, outlaws of the sporting world and average working stiffs aspiring to right a wrong.

When they play the game of law, under the same roof for 15 years but never in tandem, the stakes tend to be high and the arena bathed in a bright spotlight: Tainted water victims in Walkerton; train crash survivors in Thamesville; disgruntled shareholders in the failed Bre-X Minerals Ltd.; heart patients with defective pacemakers; and hepatitis C sufferers seeking compensation from the federal and provincial governments for tainted blood. Continue reading “Farewell to the Firm”

B.C. Premier’s Son Acquitted

CBC News.

Judge labels testimony of accused inconsistent

The son of B.C. Premier Ujjal Dosanjh walked out of a Windsor court Monday a free man – found not guilty of causing a disturbance and assaulting a police officer.

Aseem Dosanjh fought back tears as he left the court, relieved to be able to resume his law career without the taint of a criminal conviction.

Dosanjh’s friend, Sanjit Parhar was also found not guilty of causing a disturbance. Both men were involved in a brawl outside a Windsor bar last April 29, after celebrating their graduation from the University of Windsor law school.

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Activists Confident of Acquittals

The lawyer representing the head of Windsor’s largest CAW local and another

Ken Lewenza. Photo credit: Canadian Metalworking
Ken Lewenza. Photo credit: Canadian Metalworking

union activist accused of violence during a strike-related protest says he expects their case to go to trial.

“I’m hopeful in the end they’ll be exonerated and there will be an indication that they didn’t do anything wrong,” Patrick Ducharme said Wednesday, after CAW Local 444 president Ken Lewenza and former CAW Local 1973 president Nick Dzudz made their first court appearance. Continue reading “Activists Confident of Acquittals”