Canadian Criminal Procedure and Practice/Search and Seizure/Print version

Search and Seizure/Rights against Search and Seizure

General Principles

The relevant Charter provision states under the heading of "legal rights":

8. Everyone has the right to be secure against unreasonable search or seizure.

Privacy is "at the heart of liberty in a modern state". It is "essential for the well-being of the individual" and has a profound significance for the public order." It is also a “protean concept”, meaning that it tends to be highly variable and change.

The purpose of the right under s. 8 is to protect "the citizen's right to a reasonable expectation of privacy" and to "prevent unreasonable intrusions on privacy, not to sort them out from unreasonable intrusions on an ex post facto analysis". It is for this reason that the principle of reasonable expectation of privacy is a "normative rather than a descriptive standard".

The right is concerned with balancing the state's interest in law enforcement and privacy interests of persons. It is only when the state can "demonstrate the superiority of its interest to that of the individual" that a search can be valid. This point exists where there is reasonable and probable cause which lies at the point where "point where credibly-based probability replaces suspicion".

Under this section police are prohibited from "unreasonable" searches. The inquiry of the lawfulness of a search is based on whether the search was "reasonable" in the circumstances. The circumstances include the nature of the duty performed as well as the purpose of the search.

A search is only subject to Constitutional review where the search intrudes on a reasonable expectation of privacy of the accused. Only where the privacy right exists that there is an inquiry into the reasonableness of the search.

A lawful search must be (a) authorized by law; (b) the law itself must be reasonable; and (c) the manner in which the search was carried out must be reasonable.

A search consists of any state interference of a person's privacy interests. As such, there is little distinction between the initial intrusion itself and the search subsequent to intrusion.

Meaning of a "Search"

Any police conduct interfering with a reasonable expectation of privacy is a "search".

Any "inspection is a search" where a "person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access".

Knocking at the door for an investigative purpose is not a search.

However, going onto private property and peering into windows while attempting to detect odours of marijuana can constitute a search.

Merely peering into a car windows at night using a flash-light while the car in on a public highway is not a search.

Detection of an odour of marijuana from a bag, by an officer using his own senses, while performing other duties does not constitute a search. This is distinct from detection with the use of technology, such as a sniffer dog or a FLIR device.

However, police observations of stains on a shirt visible to the public is not a search.

Meaning of "Seizure"

A "seizure" in essence is the "taking of a thing from a person by a public authority without that person's consent". An individual who gives something to an officer does not constitute a seizure. Rather it is merely the receipt of a thing.

Any "taking is a seizure" where "a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access".

A seizure does not have to be connected to a search.

Valid consent in this context is determined based on indicia such as:

1. there was a consent, express or implied;
2. the giver of the consent had the authority to give the consent in question;
3. the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
4. the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
5. the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,
6. the giver of the consent was aware of the potential consequences of giving the consent.

Taking of a photograph by police has been considered a search or seizure.

Zones of Protection

The Charter right protects a person's reasonable expectation of privacy. This is a protection of persons not places.

The right manifests itself in protecting the zones of the person, territory, and information.

Personal Privacy

Personal privacy "protects bodily integrity, and in particular not to have our bodies touched or explored to disclose objects or matters we wish to conceal." It is for that reason that it is considered the strongest of the forms of privacy.

This form of privacy is most often considered in a strip search or a warrantless seizure of a bodily sample.

Territorial Privacy

Privacy over personal territory traces back to the English common law with the maxim that "the house of everyone is to him as his castle and fortress". This has since been adopted into the common law of Canada and the Canadian Charter of Rights and Freedoms.

Informational Privacy

The right protects the "biographical core of personal information" that includes "information which tends to reveal intimate details of the lifestyle and personal choices of the individual."

Purpose of Search

The purpose of the search is a relevant to the analysis of the search. The most frequent form of search is a search for evidence of a commission of an offence, criminal or otherwise. Secondarily, there will be searches for the purpose of officer safety. Each type of search will have different scope of powers of search.

Party Performing the Search

Section 8 of the Charter governs searches by government and its agents. The scope and degree of privacy is always with respect to a particular party.

An employee of a private company become an agent of the state when they are directed to perform a task by the police. However, where the actions of the employee, company, or person, were strictly voluntary then they are not agents of the state.

A police informer wearing a wire is an agent of the state.

Employees of government agencies, such as social workers, who discover or investigate possible offences are agents of the state. Similarly, a private citizen performing a citizen's arrest and searching a person in anticipation of the arrival of the police is an agent of the state.

An Internet Service Provider forwarding information on the discovery of child pornography is acting as an agent of the state.

See also

• Canadian Criminal Procedure and Practice/Search and Seizure/Seizure of Property

Search and Seizure/Reasonable Expectation of Privacy

Introduction

A search can be unreasonable where it intrudes on a person's reasonable expectation of privacy.

An "expectation of privacy is a normative rather than a descriptive standard"

The determination of privacy rights is made "from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy."

The rights are intended to protect "biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state." It further "include[s] information which tends to reveal intimate details of the lifestyle and personal choices of the individual."

Courts interpret privacy in a "broad and liberal manner".

Section 8 protects persons not places. The Charter does not recognize regions of immunity. Solicitor-client meeting rooms, for example, or confessionals are given no heightened expectation of privacy due to their intended use.

Privacy is held with respect to different parties. A person will hold a different expectation of privacy from an employer than from the police.

A person cannot have a reasonable expectation of privacy in what they knowingly expose to part or all of the public or abandons in a public place.

The accused must begin by establishing the existence of a s.8 right by showing there is was reasonable expectation of privacy.

Factors

Factors considered in R. v. Edwards:

1. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.
2. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: 
   1. presence at the time of the search; 
   2. possession or control of the property or place searched; 
   3. ownership of the property or place; 
   4. historical use of the property or item; 
   5. the ability to regulate access, including the right to admit or exclude others from the place; 
3. the existence of a subjective expectation of privacy; and 
   1. the objective reasonableness of the expectation. 

When in the context of "informational privacy", the Edwards criteria were amended to include other considerations and factors:

1. What was the nature or subject matter of the evidence gathered by the police?
2. Did the appellant have a direct interest in the contents?
3. Did the appellant have a subjective expectation of privacy in the informational content of the evidence?
4. If so, was the expectation objectively reasonable? In this respect, regard must be had to:
   1. the place where the alleged “search” occurred
   2. whether the informational content of the subject matter was in public view;
   3. whether the informational content of the subject matter had been abandoned;
   4. whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?
   5. whether the police technique was intrusive in relation to the privacy interest;
   6. whether the use of this evidence gathering technique was itself objectively unreasonable;
   7. whether the informational content exposed any intimate details of the appellant’s lifestyle, or information of a biographic nature.

Established Zones of Privacy

Vehicles

A driver has a reasonable expectation of privacy for the contents of his motor vehicle. The reasonable expectation of privacy for a vehicle is low. It is considered more limited than locations such as houses.

Passengers however do not generally have a reasonable expectation of privacy. However, in some cases they can. It will depend on the totality of the circumstances including the passenger's connection with the vehicle, the vehicle's owner, the passenger's use of the vehicle, and ability to control access to it.

Residences

There is a high expectation of privacy in a house. Unlawful entry will be a serious intrusion on the person's privacy rights.

It can "be presumed unless the contrary is shown in a particular case that information about what happens inside the home is regarded by the occupants as private".

A search of a dwelling is considered an invasion of a place with the "highest degree of privacy".

A person will have a diminished expectation of privacy where legislation authorizes police intrusion.

Police intrusion upon private property can only be permitted "only by powers granted in clear statutory language"

Non-dwelling Residences

Provided an expectation of privacy exists in a non-dwelling residence, the accused's standing may invoked where he has "an ownership interest in the premises" absence countervailing evidence.

Person

An individual who attends a hospital for medical treatment is entitled to expect that his clothing will be held by the facility until discharged. Hospitals have been identified as an area of concern for the protection of privacy.

Bodily Samples
DNA samples taken as part of a previous sentence is not protected by a reasonable expectation of privacy.

Fingerprints
Fingerprints taken as part of a previous sentence is not protected by a reasonable expectation of privacy.

Photographs
Photographs taken as part of a previous sentence is not protected by a reasonable expectation of privacy.

Body Cavity
Strip searches can be humiliating, embarrassing, and degrading for the accused. It is also one of the most extreme forms of search available to police.

Storage

School lockers have a reduced expectation of privacy with respect to teaching staff.

Business Records

Telephone records detailing contact between various persons has a reduced expectation of privacy, in comparison to personal medical records

Several lines of cases have developed on the issue of whether there is a reasonable expectation of privacy in subscriber information associated with business accounts, in particular IP addresses. Generally they have sided on there not being privacy rights in "tombstone" information of a person since it is freely available to the public. In certain cases this will turn on the service contract. Where a contract is not in evidence a court is more likely to find in favour of there being a expectation of privacy.

Whether a person has a bank account with a particular bank does not have a reasonable expectation of privacy because that information does not reveal any core biographical information.

Garbage

Generally speaking, there is no expectation of privacy is materials found in a dumpster.

Computers and Electronic Devices

Home and personal computers are imbued with a high degree of privacy due to the frequency that it contains intimate correspondence, financial, medical, or personal information. In addition to our personal interests and tastes. According to the Morelli court, the level of privacy does not get much higher.

Generally, all personal electronic devices similar to home computers have a high level of privacy.

Any electronic device (computer, cell phone, etc) will contain information detailing a persons life that can be "deeply personal". Personal information can be found in:

• Contact Information (detailing names, addresses, phone numbers, e-mail addresses and similar information);
• Internet Browsing (history of websites, log-in information, passwords, form data);
• Calendars;
• Photographs and videos;
• Messages (emails, texts, voicemails);
• Phone Call Logs (dialled/received/missed calls, caller identification);

It is suggested that the degree of privacy is lessened where a personal computer has been brought to a repair shop. In some cases, there is no expectation of privacy. In R. v. Piette,2009 QCCQ 14499 a computer repairman makes copy of child abuse images found on computer onto a CD and gives it to police. The court found no REP on CD so no need for warrant.

There is conflicting case law on instances where a third party examines a computer system and discovers evidence of a criminal offence on it. In R. v. Cole, 2008 ONCJ 278 the school supervisor finds child abuse images on network directory of employee, he tells police who seize computer and send for a forensic analysis. The court found section 8 violated for search without warrant.

An accused loses their reasonable expectation of privacy to a household computer once they move out.

The search of a computer cannot always be precise. An investigating officer looking for a particular piece of evidence may need to diverge into several areas of the hard drive in the same way as a person searching a house would look into a number of draws of a bedroom before finding evidence.

Workplace computers are considered to have limited or no expectation of privacy. This will turn on the employer's privacy policy on whether the employees can keep personal things on work computers.

A computer seized as under plain view under s. 489 during the execution of a general residential search warrant is permissible. However, the search of its contents may require a warrant.

Peer-to-Peer Software

Software installed on a computer that enables other persons on a network to access information and files on a computer, such as Peer-to-Peer software, is relevant to the courts usually in a child pornography cases.

Some US cases have considered whether there is a privacy right in the computer's shareable files. Courts have concluded that files found on a computer that are accessible and transferable over a peer-to-peer do not have a reasonable expectation of privacy due to the

In Canada, there is a slow adoption of the same view. In R v Caza, 2012 BCSC 525, the court noted that the shared directory in a peer-to-peer network is much less private than a dwelling. It is not the same as a search through the entire hard drive of an entire computer because it is more restrictive. The search of shared files on peer-to-peer network does not engage s. 8 of the Charter.

Memory Sticks

In R. v. Tuduce, 2011 ONSC 2749, the court said that a search of a memory stick has a REP and so requires a search warrant.

Cell phones

There is a division in the case law on the level of privacy there is for cell phones.

A smart cellphone, as a digital device, is said to have a high expectation of privacy. It is like "an archive of social, family and business activities".

Several cases have stated that a complete forensic analysis of a cell phone, a so-called "data dump", without a warrant is impermissible.

There is limited authority stating no search of phones is permitted.

A limited warrantless search is permitted incident to arrest when the search is connected with the investigation. On arrest for drugs, the police may search the calling records on the cell phone.

In Giles, 2007 BCSC 1147, the court stated the police can search and download copies of emails on a blackberry incident to arrest.

Prisons

An inmate in a correctional facility has a very limited expectation of privacy over their phone calls.

II - Warrantless Searches

Types of Search

An individual alleging a breach of his or her Charter rights bears the burden of proving that violation on a balance of probabilities. That being said, if the individual can demonstrate that a police search was conducted without a warrant, that search will be presumed to be unreasonable unless shown to be justified. The Crown then must prove the reasonableness of the search on a balance of probabilities. Reasonableness of a search has both a subjective and objective component.

The Police cannot enter into a private dwelling without a warrant, consent, or exigent circumstances.

There are four types of warrantless searches:

1. Search by Consent;
2. Search Incident to Detention;
3. Search Incident to Arrest;
4. Search of Abandoned Property;
5. Search in Plain View;
6. Exigent Circumstances

Search and Seizure/Warrantless Searches/Abandoned Property

This book is a reference for practitioners, police officers, and law students who need a convenient way to look up legislation, principles, and case law. The reader is assumed to already have a knowledge of criminal law.

There is no guarantee whatsoever as to the accuracy, completeness, or currency of the information provided in this or any other companion text. Nothing here should be taken as legal advice.

For recent developments on these series of books see News on Canadian Criminal Law series.

CAUTION: this wikibook ceased active development in 2012. A more up-to-date branch of this text can be found at http://criminalnotebook.ca. 

Contents

• Introduction

Police Investigation

• Arrest and Detention
  • Investigative Detention
  • Warrant Arrests
  • Warrantless Arrests
  • Arrest Procedure
    • Right to Counsel
  • Exclusion of Evidence
  • Waiver of Charter Rights
• Search and Seizure
  • Rights against Search and Seizure
  • Reasonable Expectation of Privacy
  • Warrantless Searches
    • Search by Consent
    • Search Incident to Detention
    • Search Incident to Arrest
    • Search for Abandoned Property
    • Search in Plain View
    • Exigent Circumstances
  • Warrant Searches
    • Execution of Warrants
  • Types of Search Warrants
    • Bodily Samples
    • Wiretaps
    • CDSA Warrants
    • Foreign Warrants
  • Seizure of Property
  • Exclusion of Evidence
  • Waiver of Charter Rights

Counsel

• Role of the Crown and Defence
• Disclosure
  • Third Party Records
  • Demand for Particulars
  • Production Orders

Court Proceedings

• Jurisdiction
• Types of Offences
  • Election
• Informations and Indictments
  • Charges
• Pleas
• Pre-Trial and Trial Motions
  • Case Management Hearings
  • Applications and Motions Procedure
  • Adjournments
  • Public and Media Restrictions
  • Change of Venue
  • Withdraw and Dismissal of Charges
  • Stay of Proceedings
    • Delay of Proceedings
  • Peace Bonds
  • Mandamus, Certiorari, and Prohibition
  • Habeas Corpus
  • Challenging Legislation
  • Costs
• Preliminary Inquiry
• Trials
  • Trial Process
  • Representation at Trial
  • Accused at Trial
  • Opening and Closing Submissions
  • Calling of Witnesses
  • Examinations
  • Role of Trial Judge
  • Juries
    • Selection
    • Instructions
  • Weighing Evidence
  • Verdicts
• Appeals
  • Indictable Offence Appeals
  • Summary Offence Appeals
  • Standard of Review
• Mental Illness
  • Fitness to Stand Trial
  • Not Criminally Responsible

Appendix

• Readings
• Cases
• Search Warrant Chart
• Motions Chart
• Re-Elections Table
• Model Examinations

Please add {{alphabetical}} only to book title pages.

Search and Seizure/Warrantless Searches/Consent Search

Principles

A search conducted with valid consent is lawful.

Valid consent exists where the following is present:

1. There was a consent, either express or implied;
2. The consenting party has the authority to give the consent;
3. Consent was voluntary and not the product of police oppression, coercion or other external conduct negating freedom to choose not to consent;
4. The consenting party knew of the nature of the police conduct to which he or she was being asked to consent;
5. The consenting party knew they had the ability to refuse the search;
6. The consenting party was aware of the potential consequences of giving the consent, including a general understanding of the jeopardy resulting from the police conduct about which the consent was being sought.

For consent to be valid it must be voluntary and informed. Voluntary search requires that the consent to be given without coercion.

Informed consent to a search requires the accused to be aware of the right to refuse the search and the consequences of consenting to the search.The party expressing "consent must be possessed of the requisite informational foundation for a true relinquishment of the right. A right to choose requires not only the volition to prefer one option over another, but also sufficient available information to make the preference meaningful.”

The cases are divided on whether the police need to give clear instructions on the right to refuse. In R v Rutten 2006 SKCA 17 at 39 to 44, the court stated that permission to enter to search a dwelling must include information on the person's right to refuse. While elsewhere it is said that the standard of informed consent is less than the informational component of s. 10(b). The police need not tell the accused of the right to refuse consent. However, a failure to do so may result in a lack of informed consent.

The Crown must establish that the accused right to be searched was waived clearly and unequivocally. However, where the accused is given access to counsel there is a presumption of informed consent unless the accused shows otherwise.

Once consent is given there is no future expectation of privacy.

The "occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property”

Consent to enter a home does not include a blanket right to search the whole house including the basement.

Who has authority to give consent and Third Party Consent

An "authorized occupant" of a residence may give consent to a search.

A homeowner can authorize a search.

A landlord or neighbour does not constitute an "authorized occupant".

Guests can have the authority to consent to a search of a home, however, the authorization can be revoked by the homeowner.

For all searches the police must have a subjective belief that they have consent to conduct the search and it must be an objectively reasonable belief in the circumstances. Where the policer wrongly relied upon consent of a third party, the reasonableness of their belief will go to the section 24(2) analysis.

Mandatory Consent

A court order, such as a probation order, can in certain circumstances require an offender to consent to random searches.

Consent by Organizations Holding Personal Information

Privacy of personal information within private companies is governed by the Personal Information Protection and Electronic Documents Act (PIPEDA).

Section 7(3) permits the disclosure of personal information without the subject's knowledge or consent:

Disclosure without knowledge or consent
(3) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is

...

(c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that

(i) it suspects that the information relates to national security, the defence of Canada or the conduct of international affairs,

(ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law, or

(iii) the disclosure is requested for the purpose of administering any law of Canada or a province;

...

(d) made on the initiative of the organization to an investigative body, a government institution or a part of a government institution and the organization

(i) has reasonable grounds to believe that the information relates to a breach of an agreement or a contravention of the laws of Canada, a province or a foreign jurisdiction that has been, is being or is about to be committed, or

(ii) suspects that the information relates to national security, the defence of Canada or the conduct of international affairs;

...

(h.2) made by an investigative body and the disclosure is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province; ...

– PIPEDA

Under this section a peace officer may make a Law Enforcement Request (LER) requesting particular information of an accused person without their consent. A proper LER should identify the person requesting the information, what information is being requested, the purpose of the request for the information (presumably to obtain evidence to an offence). The organization is permitted but not required to provide the information requested.

See Also

• Waiver of Charter Rights

Search and Seizure/Warrantless Searches/Exigent Circumstances

General Principles

Where there are "exigent circumstances", a police officer may forego the requirement of a search warrant.

The Courts have long recognized that the protections of s. 8 are "circumscribed by the existence of the potential for serious and immediate harm." Exigent circumstances "inform the reasonableness of the search...and may justify the absence of prior judicial authorization".

This rule has been codified in s. 487.11 of the Criminal Code:

Where warrant not necessary
487.11 A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

1997, c. 18, s. 46.

– CCC

In the context of a drug offence s. 11(7) of the Controlled Drugs and Substances Act provides that:

(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) [the subsections setting out the powers of a peace officer having a search warrant] without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.

Generally, "exigent circumstances" exists where "there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed."

In the context of police responding to 911 calls, the police have a duty to protect life which may result in a permissible encroachment on otherwise protected privacy rights. This right to protect life is "engaged whenever it can be inferred that the 911 caller is or may be in some distress, including cases where the call is disconnected before the nature of the emergency can be determined."

The Crown must present an "evidentiary basis" to establish the underlying police safety concerns.

Entry of residences

The Supreme Court of Canada in R v Feeney held that s. 8 of the Charter requires a warrant to enter a residence to arrest unless it falls into the common law doctrine of "hot pursuit".

Sections between 529 to 529.5 were added subsequent to the Feeney decision.

Authority to enter dwelling without warrant
529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

Exigent circumstances
(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer

(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or

(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.

1997, c. 39, s. 2.

– CCC

Section 529.3 "relieves against the requirement for a warrant to arrest where exigent circumstances make it impractical to obtain one."

Exigent circumstances are "generally found to exist where the police have reasonable grounds to be concerned that prior announcement would: (i) expose those executing the warrant to harm and/or (ii) result in loss or destruction of evidence and/or (iii) expose the occupants to harm."

Where police respond to a dropped 911 call they can enter the home if they have reasonable grounds to believe an offence has been committed. (R. v. Godoy [1999] 1 SCR 311, 1999 CanLII 709)

Searches of surrounding property is treated much in the same way as residences themselves. The police cannot search the perimeter of a residence without a warrant.

On a warrantless entry into a residence the courts should look at factors including:

1. what information did the officers have?
2. what information could they infer?
3. what were their alternate courses of action?
4. what was the reasonableness of the action they took?

Search of a rental room even with the consent of the building owner will generally require a warrant.

At common law, the doctrine of hot pursuit permits a peace officer "to enter a private premises to make an arrest in hot pursuit".

Hot Pursuit Exception

A "hot pursuit" requires a "fresh pursuit" that is a "continuous pursuit conducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction."

Before the doctrine applies, the police must "already have the power and grounds to arrest without a warrant" before entering the residence.

However, the police officer does not have to have personal knowledge to form the grounds. An officer continuing the pursuit from another officer can be sufficient.

This exception is considered "narrow" and presumes the police are "literally at the heels of a suspect at the moment the suspect enters a dwelling-house"

Wiretap

See Emergency_Wiretaps

Search and Seizure/Warrantless Searches/Incident to Arrest

General Principles

See also Warrantless Arrest for details on arrest powers

In the situation of an arrest, it is generally permitted that upon lawful arrest, police have the power to search a person for officer safety reasons as well where there is "some reasonable prospect of securing evidence of the offence for which the accused is being arrested" and to secure that evidence. A peace officer may also take property from a person which the officer reasonably believes is connected with the offence charged, or which may be used as evidence against the person arrested. This power is derived from the common law. This common law power is an exception to the usual requirement of "reasonable grounds" for a search. The Officer must subjectively believe that person is committing or has committed an indictable offence and their belief is based on objectively reasonable grounds. The lawfulness of a search incident to arrest flows from the lawfulness of the arrest itself and so does not require independent reasonable grounds.

Search incident to arrest is an exception to the rule that a warrantless search is prima facie unreasonable.

Further, an accused has no expectation of privacy with respect to his personal belongings seized upon arrest.

Searches incidental to arrest are required to follow a number of principles stated in R. v. Caslake:

1. Officers undertaking a search incidental to arrest do not require reasonable and probable grounds; a lawful arrest provides that foundation and the right to search derives from it (Caslake at paras. 13 and 17);
2. The right to search does not arise out of a reduced expectation of privacy of the arrested person, but flows out of the need for the authorities to gain control of the situation and the need to obtain information (Caslake at para. 17);
3. A legally unauthorized search to make an inventory is not a valid search incidental to arrest (Caslake at para. 30);
4. The three main purposes of a search incidental to arrest are: (1) to ensure the safety of the police and the public; (2) to protect evidence; (3) to discover evidence (Caslake at para. 19);
5. The categories of legitimate purposes are not closed: while the police have considerable leeway, a valid purpose is required that must be “truly incidental” to the arrest (Caslake at paras. 10, 20 and 25);
6. If the justification for the search is to find evidence, there must be a reasonable prospect the evidence will relate to the offence for which the person has been arrested (Caslake at para. 22);
7. The police undertaking a search incidental to arrest subjectively must have a valid purpose in mind, the reasonableness of which must be considered objectively.

The police are obliged to safeguard items they have seized.

Person Arrested

Searches conducted in the normal practice creating an inventory of items on a person who is being lodged in cells for an offence is a permissible search.

Motor vehicles

The common law power of police to search incident to arrest can include the accused's motor vehicle. An officer may search a vehicle incidental to arrest where it is for a valid purpose related to the offence and where the officer reasonably believed that the search would be only to achieved that legitimate purpose. There is no heightened expectation of privacy justifying an exemption from the usual common law principles of search incident to arrest. For example, a search of a brief case found in a stolen vehicle incident to arrest is justified. The presumption of unreasonableness of a warrantless search is rebutted upon proof that the arrest was lawful and the search was reasonable.

When a vehicle is impounded lawfully, the officers have a duty to keep the property safe and take reasonable steps to do so. This will require entering the vehicle for itemizing the property of apparent value.

Passengers of Vehicles

A passenger in a motor vehicle generally does not have a reasonable expectation of privacy. However, there is an expectation of privacy to the limited area underneath the passenger.

Computers

A search memory stick without warrant upon arrest for credit card fraud has been found to violate s. 8.

Cell phones

The law regarding police procedure for searching cell phones is a developing issue in Canada.

In many cases police seize cell phones from suspects and search them following an arrest. Police are permitted to search people for weapons of evidence related to the reason of arrest immediately following an arrest. These searches may only be performed where police have reason to believe that relevant evidence will be found that could otherwise be lost or destroyed. This is called search incident to arrest, and the rules concerning this procedure arise from Caslake , and Cloutier v. Langlios .

At this stage, if a police officer finds an unlocked phone, they may perform a cursory search of its contents. The term 'cursory' search has been called "too vague" and whether these searches will continue to be allowed on cell phones, and under what circumstances, is subject to debate in Canadian,; however, these searches have been permitted with little argument in the past.

In other examples, warrantless incident to arrest searches of cell phones have been held valid where the search is carried out reasonably, and for a valid purpose related to the offence. In another example, a cursory search of a cell phone incidental to arrest was lawful where it was used to determine identity and whether the phone was stolen.

In these types of searches, the reason to search the phone has to be somehow connected to the investigation. A search of a cell phone during an arrest for curfew breach, for example, was found to be a violation of s.8.

There are many cases where police then take a cell phone into the station, or send it away to a lab, for computer assisted searches. This has been permitted in the past without a warrant. New cases have cropped up, which are tied to Supreme Court of Canada discussion surrounding privacy interests that people have in their computers and smart phones, , that point to a new requirement for police to obtain warrants before subjecting a smart phone to a computer assisted search or a search involving the copying of a phone's contents.

Providing particularly good summary discussion on this issue are leading provincial court cases: in British Columbia, R. v. Vye, (2014) BCSC 93, and in Nova Scotia R. v. Hiscoe, (2013), NSCA 48.

Other Scenarios

Where the police seize a vehicle for the purpose of removing it from the road, there is a lessened expectation of privacy. Thus, any contents of the vehicle in plain view upon entering the vehicle can be seized.

Police may search a vehicle to determine whether there are weapons found in the vehicle.

A request by a police officer for a driver's licence and insurance is not a search.

Search and Seizure/Warrantless Searches/Incident to Detention

General Principles

See Investigative Detention for further details

There is a common law power to search incident to detention where "the officer … believe[s] on reasonable grounds that his or her own safety, or the safety of others, is at risk." If the search goes beyond the purpose of officer safety and becomes investigative then a lawful search can become unlawful.

There is no general power to search bags or vehicles incident to detention.

Vehicle Searches

A warrantless search of a vehicle may be reasonable where there are reasonable grounds to believe the vehicle contained illegal items. This however is limited to situations in which the vehicle could be moved "quickly" and there is a risk that the evidence may be lost if an attempt was made to get a search warrant first.

In R. v. D. (I.D.), 1987 CanLII 206 (SK C.A.), the Court suggested the following requirements for a warrantless search:

1. that the vehicle be stopped or the occupants be detained lawfully;
2. that the officer conducting the search have reasonable and probable grounds to believe that an offence has been, is being or is about to be committed and that a search will disclose evidence relevant to that offence;
3. that exigent circumstances, such as imminent loss, removal or destruction of the evidence, make it not feasible to obtain a warrant;
4. that the scope of the search itself bear a reasonable relationship to the offence suspected and the evidence sought.

Roadside Stops

Even if the police have lawful grounds to stop a vehicle this does not allow a search of the vehicle unless there are "reasonable grounds".

Check stop programs aimed to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars cannot be used by the police to search beyond its aims. However, roadblocks set-up to search vehicles in order to catch suspects fleeing an armed robbery was considered a lawful search given the existence of a basis for investigative detention and the relative seriousness of the offence.

Several provincial acts permit searching of vehicles without a warrant:

Section 107 of Alberta’s Gaming and Liquor Act, RSA 2000, c G-1 permits search where there is reasonable probable grounds are established that the act has been violated.

Search and Seizure/Warrantless Searches/Plain View

General Principles

A person has no reasonable expectation of privacy in what he knowingly exposes to the public or abandons in a public place.

A peace officer may seize any evidence which he observes by use of one or more of his senses from a lawful vantage point. If an officer is on a premises lawfully and observes items believed to be illegal, it is lawful for him to seize the items.

For example, police may enter into a house on the basis of preserving property and the public peace, and if on entering they discover stolen property in the household, it may be considered evidence under the plain view doctrine. Without a lawful search or lawful entrance, there can be no basis for the doctrine.

There are generally three requirements for the plain view doctrine:

1. the police officer must lawfully make an initial intrusion or otherwise properly be in a position from which he can view a particular area;
2. the officer must discover incriminating evidence inadvertently, which is to say, he may not know in advance the location of certain evidence and intend to seize it, relying on the plain view doctrine only as a pretext;
3. it must be immediately apparent to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. These requirements having been met, when police officers lawfully engaged in an activity in a particular area perceive a suspicious object, they may seize it immediately:

Lands accessible to the public--i.e. "open fields"--do not have a reasonable expectation of privacy and so are not protected by the Charter where illegal items are found in it. However, the "open fields" doctrine does not encompass all open air private properties.

Observations should be made without violation of the law. Police making observations by trespassing at night is not permitted.

It does not stretch so far as to include a bag found in a locker at a public bus station.

Under s.489(2), where an officer is in the execution of their duties, may without a warrant, seize anything that the officer has reasonable grounds to believe is obtained by, used for, or will afford evidence towards an offence. This power is separate and apart from the common law doctrine of plain view seizure.

See Canadian Criminal Procedure and Practice/Search and Seizure/Seizure of Property for more on seizure.

Technological Detection

FLIR

The use of thermal imaging known as Forward Looking Infared Radar (FLIR) is not a form of search. The heat radiating from the house provides limited information about what is going on inside and virtually no information about the person core biographical information. The emanations exist on the outside of the house and so are exposed to the public.

Sniffer Dogs

The use of a sniffer dog amounts to a "search" in law. The use of the sniffer dog is almost exclusively in the realm of drug investigations.

For a sniffer dog search to be valid, the court must ask itself:

1. did the officer subjectively believe that there were reasonable grounds to suspect that the accused was in possession of the drugs?
2. were there sufficient grounds to reasonably suspect the accused was in possession of drugs?

Reasonable suspicion in this circumstances requires an "expectation" that the accused is "possibly engaged in some criminal activity. As well, the suspicion must be supported by facts that can be subject to review.

As part of the determination of reasonable suspicion it includes the presence of a "masking agent" such as perfumes, colognes or other odour producing products.

See also: R v Navales 2011 ABQB 404; R v Loewen 2010 ABCA 255; R v Calderon 2004 ONCA 7569.

III - Warrant Searches

Introduction

A Search Warrant is an Order issued by a Justice of the Peace under statute that authorizes a person to enter into a location and seize specified evidence that is relevant and material to an offence. The warrant is a substitute for consent to enter a private premises or any other places with reasonable expectations of privacy.

The criminal code provides for several types of search warrants:

General Search Warrant ( s. 487) Firearms warrant ( s.117.04) Obscene materials (s. 164) Consent wiretap (s. 184.2) Wiretap (s. 186) Impaired Driving Blood Samples (s.256)

Proceeds of Crime (s. 462.32) DNA Sample ( s. 487.05) Tracking (s.492.1) Number recordings (s. 492.2) Telephone records ( s. 492.2(2)) Bodily impressions (s. 487.091)

Drug offences (s. 11 CDSA) Telewarrants ( 487.1) Explosives Warrant (492) Entry for Arrest (529, 529.1) Production Order (.s 487.011-013)

There are other search and seizure powers found under a variety of other federal Acts that are not directly criminal in nature.

Purpose of a warrant

The purpose of a search warrant is to allow investigators to "locate, examine and preserve all the evidence relevant to events which may have given rise to criminal liability."

A search warrant can be used not only for collecting evidence supporting a criminal charge but also as an investigative tool for alleged criminal activity.

The items sought need not necessarily afford evidence of the actual commission of the offence under investigation. Rather it "must be something either taken by itself or in relation to other things, that could be reasonably believed to be evidence of the commission of the crime."

A search warrant makes valid act which would otherwise be considered trespass.

Procedure for Obtaining a Warrant

An application for a search warrant consists of an "Information to Obtain" (ITO) and usually a draft warrant that presented to a justice of the peace or judge. An ITO consists of a statement under oath or an affidavit of an informant detailing the facts known (both first hand or second hand) that would provide basis to issue a warrant.

An application for a warrant is an ex parte motion and as such must "make full, fair and frank disclosure of all material facts".

Issuing of Warrant: Reasonable and Probable Grounds

The Charter requires that for all warrants police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search" These requirements set out the "minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure"

In more recent times the standard is called "reasonable grounds to believe".

The standard of reasonable grounds to believe is greater than mere suspicion but less than on a balance of probabilities when the totality of the circumstances are considered. It is a standard of reasonable probability and is credibility based. It must be more than mere possibility or suspicion. It is a standard of "credibly-based probability"

The key elements to credibility-based probability includes:

1. The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at a specked place
2. The Information to obtain as a whole must be considered and peace officers, who generally will prepare these documents without legal assistance, should not be held to the “specificity and legal precision expected of pleadings at the trial stage.”
3. The affiant’s reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant’s belief: R. v. Yorke 1992 CanLII 2521 (NS CA), (1992), 115 N.S.R. (2d) 426 (C.A.); affd 1993 CanLII 83 (SCC), [1993] 3 S.C.R. 647.

The court may consider the experience of a police officer when assessing whether the officer's subjective belief was objectively reasonable.

The Justice of the Peace may draw reasonable inferences from the information found in the ITO.

The approving justice must be satisfied that there is a connection between the grounds for belief of the offence and that evidence of or information related to the offence will be found on the premises to be searched.

The Information to Obtain the search warrant (ITO) does not need to state every step a police officer takes in obtaining information.

An ITO can be read in a practical, non-technical, common-sense fashion.

The officer’s are not held to the same drafting quality as counsel.

The document should be reliable, balanced and material. It should also be clear, concise, legally and factually sufficient, but it need not include “every minute detail of the police investigation”.

The ITO cannot be based on any information that was learned through an warrantless search of an agent of the state.

Where the basis of the warrant relies on a confidential informer, the requirement from R v Debot must be considered. Generally, the requirement will increase "the level of verification required" where "credibility cannot be assessed", "fewer details are provided", and "the risk of innocent coincidence is greater".

Generally, an approving justice should be satisfied that:

1. that the items specified exist;
2. that the items specified will be found in the place to be searched at the time of the search;
3. that the offence alleged has been, or will be, (depending on the type of search warrant being sought) committed;
4. that the items specified will afford evidence of the offence alleged; and
5. that the place to be searched is the location where the items will be located.

The document should be reliable, balanced and material. It should also be clear, concise, legally and factually sufficient, but it need not include “every minute detail of the police investigation”

Standard of Review: The Garofoli Application

A "Garofoli Application" refers to the defence motion to exclude evidence collected under a search warrant.

Before a party can make such an application, they must have standing, which requires that there be an established Reasonable Expectation of Privacy.

Presumptions and Burdens
A warrant is presumed valid. The applicant bears the burden to establish that there was insufficient basis for issuing the warrant. This presumption applies not only to the warrant but the ITO as well.

Degree of Deference
The reviewing judge is not examining police conduct with great attention to minor details or dissection. Rather the judge must look at whether there is sufficient evidence for the warrant.

The test on review is not whether the reviewing judge would have granted the warrant but whether there was "reliable evidence that might reasonably be believed" on which the warrant could have been issued.

The reviewing judge should not "substitute his or her own view for that of the authorizing judge."

A search of a private premises "is a derogation from common law rights of ownership. The necessary formalities in the execution of the warrant must, therefore, be strictly observed".

Quality of Drafting
Flaws are to be expected. Inaccuracies or material facts not disclosed does not necessarily detract from the existence of statutory preconditions.

Errors in the information, "whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation of the ... authorization."

The ITO is examined as a whole and not one piece of evidence at a time.

Excised Portions of ITO
Inaccurate or omitted information in an ITO does not necessarily render it invalid.

Inaccurate information can be excised from the ITO, and re-evaluated without the offending information.

Amplification Evidence
Where information was omitted from an ITO or where information has been excised for other reasons, it is possible to remedy it by adducing amplification evidence.

This form of evidence can be adduced to correct innocent, minor or technical errors.

Contents of an ITO

Basic elements

It was suggested by Justice Hill in R. v. Chhan, 1996 CanLII 7025 (SK QB) that there are five basic questions that all ITO's must address at a minimum:

1. What are the grounds for believing the things to be searched for exist?
2. What are the grounds for saying that the things to be searched for are at the place to be searched?
3. What are the grounds for saying the offence has been committed as described?
4. How will the things to be searched for afford evidence of the commission of the offence alleged?
5. What are the grounds for saying that the place to be searched is at the location identified?

It has also been suggested the justice must be satisfied:

1. that an offence has been committed or is suspected of being committed;
2. that the location of the search is a building, receptacle or place;
3. that the item sought will provide evidence of the commission of the offence or that the possession thereof is an offence of itself;
4. that the grounds stated are current so as to lead credence to the reasonable and probable grounds;
5. that there is a nexus between the various considerations set out.

A search warrant must specify the premises that is to be searched.

The ITO must specify a particular offence that is being investigated. As well, it must not simply include "conclusory" statements but rather the factual grounds for the conclusions.

An unsigned affidavit supporting a wiretap warrant is not necessarily fatal to the application.

Drafting Practices

A properly drafted warrant, as a best practice, should generally involve the following elements:

1. identify the type of warrant sought as well as relevant sections.
2. the judicial authority the request is made to (JP, Superior Court Justice, Provincial Court Judge)
3. detail the identity of the affiant
   1. name, title, rank, length of employment,
   2. working group, mandate, my role in ground, type of offences investigated
   3. personal relevant experience
4. sources of information
   1. databases relied upon
   2. personal sources (name, age, residence, criminal record)
5. persons of interest (name, age, residences, charges, criminal record)
6. property at issue: (if forfeiture or seizure)
   1. describe it (location, size, who is in possession of item, all information on ownership/owners)
   2. avoid over-breadth, vagueness
7. location to be searched
   1. address, region, description of location
8. summary of investigation
9. previous applications
10. reasons for any special requests (telewarrant, night-time search)
11. conclusion / requested order

Tips for contents:

• make the source of information clear for each statement of fact
• if any evidence was obtained unconstitutionally, indicate what amount if any that evidence formed the basis of the warrant
• make sure to sign the document

Full, Frank and Fair Disclosure

The affiant must make "full, frank and fair" disclosure of all information known to the officer relevant to the matter before the authorizing justice. This obligation arises due to the ex parte nature of the application.

This does not require disclosing every fact that might possibly be relevant.

Procedure

A judge or justice of the peace rejecting a search warrant application can provide the applicant with a list of errors or omissions that make the warrant deficient without losing their responsibility as a neutral arbiter.

Description of the Place to be Searched

A warrant of a premises must accurately describe the location to be searched. If it fails to do so the warrant will be invalid.

The sufficiency of the description of the place must be assessed based on the face of the warrant, separately from the contents of the ITO or the manner it was executed. Failure to name a place on the warrant "is not a mere matter of procedural defect, but so fundamental as to render the document of no legal effect."

Error in Addresses

If the address in the warrant is wrong, the search becomes warrantless.

For a search of an apartment building, the warrant must specify the unit number.

A warrant is still valid where the address is wrong or vague in one section of the ITO but valid in another section.

Where the ITO is inconsistent with the warrant some level of error is permissible as long as the location remains sufficiently clear.

Description of Thing(s) to be Seized

The warrant's description of things to be seized "operates as a guide for the officers conducting the search."

The justice of the peace loses jurisdiction where the description is over-broad or too vague such that it essentially allows the officer to conduct a "carte blanche" search for any evidence within the premises.

It has been recommended the following principles be considered:

1. peace officers should be given some latitude in describing things as they are still at the investigative stage;
2. the description may be limited to classes of documents if it is sufficiently limited to the crime for which they are alleged to afford evidence;
3. the Information sworn to obtain the Search Warrant must be read together with the Search Warrant;
4. the nature of the offence(s) must be considered;
5. in considering all of the factors, appropriate inferences may be made;
6. there need not always be a time limit set out with respect to the documents sought;
7. overly broad or vague descriptions can be severed leaving validly described things remaining;
8. each case must be considered on its own facts.

see also R. v. Church of Scientology, supra; Re: Lubell and The Queen (1973), 11 C.C.C. (2d) 188 (Ont. H.C.J.); R. v. Silverstar Energy Inc., [2004] B.C.J. No. 1767 (B.C.S.C.); R. v. Sanchez and Sanchez 1994 CanLII 5271 (ON SC), 1994 CanLII 5271 (ON SC), (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.); R. v. PSI Mind Development Institute Ltd. (1977), 37 C.C.C. (2d) 263 (Ont. H.C.))

Types of Evidence Used

Statement by Accused

Where the ITO contains a statement from the accused, the document must also show that the accused was properly cautioned and given a right to counsel.

The statement cannot be involuntary.

Criminal Records

A copy of the informer's criminal record should be included in the ITO except where it may tend to reveal the identity of the informer.

Where the ITO states that the informer has a criminal record when in fact the informer was merely charged, it may be sufficient to void the warrant.

There is no added value in including charges that have been stayed or withdrawn. The prejudicial effect is too great.

Hearsay

The applicant should always indicate whether they are relying on hearsay or direct knowledge.

An ITO relying upon hearsay does does not exclude it from establishing "probable cause".

An ITO may contain hearsay as long as it is sourced and details are given about the source so the Justice can review the source's reliability and weigh its evidentiary value.

Details on the source should be used to distinguish the information from rumor or gossip.

Where the hearsay source is not set out the part of the ITO may be defective.

It has been recommended that where the source is the notes or reports of other officers there should be detail on how it was obtained and why it is reliable. It has been considered in appropriate to paraphrase or edit the notes of the other officers in materials ways.

It has been further suggested that where it is from a written statement of a witness, details of identity and their involvement should be provided.

Whether the confidential informant was paid should be provided as well.

Debot factors are to be applied when considering hearsay.

Expert Evidence

For expert evidence to be used in an ITO, it must contain details on the expert's qualifications and experience as well as show the methods the expert used to come to their conclusion.

Frequent Errors

Omissions, mischaracterizations, Material Non Disclosure

It is improper for the warrant to contain incomplete, misleading or misrepresented information on the investigation.

This can occur where the affiant is deliberately kept out of the investigation and only given favourable information to support the warrant.

The warrant will typically be invalid if the misstatement or omission was deliberate or a finding of bad faith. The quashing is necessary to avoid corruption of the process.

However, where the justice "could have" granted the warrant regardless of the deception, it may still be valid.

However, at times a poorly drafted and misleading warrant will, on its own, invalidate the warrant.

Nexus between Offence Evidence and Premises

The informant must pledge that the items not simply "could" be found but would be found.

Overbroad Authority

It is essential that the warrant not be overly broad. The description of the targets of the search should not be so vague as to give the police the ability to rummage through the premises.

Special Issues

Computer Investigations

The connection of an IP address with an ISP account can form reasonable grounds to believe that a computer will be present at the address, but will often need something more.

Where a warrant permits the police to search a residence and seize computers, the police are permitted to complete full forensic analysis on the computer without any additional warrants needed.

The searching officer may draw the inference upon learning of the download of suspected child pornography that the files may remain on the computer well after download and even where efforts to delete the materials have been made.

The searching officer may in some cases also rely upon their experience "of individuals who access and possess child pornography on their computers" which tells them that "often these individuals kept images for “long periods of time” and “rarely deleted collections”."

Law Offices

A justice of the peace should follow the following principles when considering a search of a law office os that solicitor-client privilege is protected:

1. No search warrant can be issued with regards to documents that are known to be protected by solicitor-client privilege.
2. Before searching a law office, the investigative authorities must satisfy the issuing justice that there exists no other reasonable alternative to the search.
3. When allowing a law office to be searched, the issuing justice must be rigorously demanding so to afford maximum protection of solicitor-client confidentiality.
4. Except when the warrant specifically authorizes the immediate examination, copying and seizure of an identified document, all documents in possession of a lawyer must be sealed before being examined or removed from the lawyer’s possession.
5. Every effort must be made to contact the lawyer and the client at the time of the execution of the search warrant. Where the lawyer or the client cannot be contacted, a representative of the Bar should be allowed to oversee the sealing and seizure of documents.
6. The investigative officer executing the warrant should report to the justice of the peace the efforts made to contact all potential privilege holders, who should then be given a reasonable opportunity to assert a claim of privilege and, if that claim is contested, to have the issue judicially decided.
7. If notification of potential privilege holders is not possible, the lawyer who had custody of the documents seized, or another lawyer appointed either by the Law Society or by the court, should examine the documents to determine whether a claim of privilege should be asserted, and should be given a reasonable opportunity to do so.
8. The Attorney General may make submissions on the issue of privilege, but should not be permitted to inspect the documents beforehand. The prosecuting authority can only inspect the documents if and when it is determined by a judge that the documents are not privileged.
9. Where sealed documents are found not to be privileged, they may be used in the normal course of the investigation.
10. Where documents are found to be privileged, they are to be returned immediately to the holder of the privilege, or to a person designated by the court.

A "law office" includes "any place where privileged documents may reasonably be expected to be located".

A search warrant of law office must impose conditions to protect potential privilege "as much as possible". Without proper protections the warrant is invalid.

Section 488.1 concerning search of law offices was found to be unconstitutional.

Sealing and Unsealing of Warrants

Once a warrant is executed, it and the ITO must be made available to the public unless the warrant is placed under a sealing order.

Under s. 487.3(1), an application to seal a warrant and ITO can be made prohibiting disclosure of any information related to the warrant on the basis that access to it would subvert the ends of justice or the information would be put to an improper purpose.

Under s. 487.3(2), set out the basis of how the ends of justice would be subverted.

The applicant must be specific on the grounds of sealing, there must be "particularized grounds". Generalized assertions are not enough.

Under s. 487.3(4), the sealing order may be varied or terminated.

Vetting Procedure

Where unsealing an unvetted ITO, the court should follow the procedure set out in Garofoli:

1. Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.
2. The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.
3. After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.
4. After the determination has been made in (3), the packet material should be provided to the accused.
5. If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.
6. If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.

Topics

• Execution of Warrants
• Specific Types of Warrant
  • General Warrants
  • Bodily Samples (including s.256, s. 487.05, s. 487.091)
  • Wiretaps
  • Tracking Warrant (492.1)
  • CDSA Warrants
  • Foreign Warrants
  • Telewarrants
  • Production Orders

See Also

• Case law
• Seizure of Property
• Search Warrant Chart

Search and Seizure/Bodily Samples

Search and Seizure Topics

• Rights against Search and Seizure
• Reasonable Expectation of Privacy
• Warrantless Searches
  • Search by Consent;
  • Search Incident to Detention;
  • Search Incident to Arrest;
  • Search for Abandoned Property;
  • Search in Plain View;
  • Exigent Circumstances
• Warrant Searches
  • Execution of Warrants
• Types of Warrants
  • Bodily Samples
  • Wiretaps
  • CDSA Warrants
  • Tracking Warrant
  • Foreign Warrants
  • Telewarrants
• Seizure of Property
• Exclusion of Evidence
• Waiver of Charter Rights

See Also

• Canadian Criminal Procedure and Practice/Appendix/Case Law (Charter)

Search and Seizure/Wiretaps

Generally

Wiretaps are governed by Part VI of the Criminal Code.

There are three categories of wiretap:

• a general wiretap authorized under s. 185 and 186.
• a wiretap with consent under s. 184.2
• an emergency wiretap under s. 184.4 and 188

The consent wiretap and emergency wiretap does not require full judicial authorization.

A wilful interception of "a private communication" without authorization is a indictable offence under s. 184 with a maximum penalty of 5 years. This offence does not include situations where one of the parties consents (s.184(2)).

Private Communication

Under s.183, a "private communication" refers to any "oral communication or any telecommunication, that is made by an originator thereof who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances where the originator expects that it will not be intercepted by any other person other than the person intended by the originator to receive it".

The following has been found not to be a "private communication":

• Electronic signals captured by a digital number recorder (DNR)
• a prayer to God as God does not meet the legal definition of a person.

Interception

The interception must be done by way of an "electromagnetic, acoustic, mechanical or other device" (s.183). Consequently, simply to use one's human senses without technological aids does not invoke Part VI.

Grounds for Application

Wiretaps are investigative tools. All that is needed is a reasonable belief to grant the authorization. The fact that the belief turns out to be false is not relevant to the application.

Before a Judge can grant the wiretap warrant, he or she must be satisifed that the applicant has "reasonable and probable grounds to believe that a specific offence has been, is being, or is about to be committed." The police must also "have reasonable and probable grounds to think that the target of the authorization will in fact be at a particular place, or be communicating in a particular manner" that will give evidence towards to investigation. A fishing expedition is not a proper basis to authorize the wiretap.

Where defence counsel has demonstrated sufficient basis, the court can order the affiant to be subject to cross-examination on the affidavit authorizing the warrant.

Review of Authorization

The review of a wire tap is the same standard as a review of any warrant.

The test to be applied on the review of a wiretap warrant is whether there were "reasonable grounds to believe that the interception of communications may assist in the investigation of the offence. It is not a question of whether there is reasonable grounds to lay changes.

An affiant should be not only full and frank but also ‘clear and concise’”

Interception with Consent

Under 184.2, a person may intercept any private communication where one party consents to the interception.

184.2 (1) A person may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where either the originator of the private communication or the person intended by the originator to receive it has consented to the interception and an authorization has been obtained pursuant to subsection (3).

...

(3) An authorization may be given under this section if the judge to whom the application is made is satisfied that

(a) there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed;

(b) either the originator of the private communication or the person intended by the originator to receive it has consented to the interception; and

(c) there are reasonable grounds to believe that information concerning the offence referred to in paragraph (a) will be obtained through the interception sought.

– CCC

This section was added to the Code in 1993 in response to the decision of R v Duarte [1990] 1 SCR 30 which held that there can be a violation of s.8 when an interception occurs with the consent of one of the parties.

Section 184.2 does not violate s. 8 of the Charter for not requiring "investigative necessity" before authorizing a search.

Prevent Bodily Harm

Under s. 184.1 a peace officer may intercept a private communication without judicial authorization:

Interception to prevent bodily harm
184.1 (1) An agent of the state may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication if

(a) either the originator of the private communication or the person intended by the originator to receive it has consented to the interception;

(b) the agent of the state believes on reasonable grounds that there is a risk of bodily harm to the person who consented to the interception; and

(c) the purpose of the interception is to prevent the bodily harm.

Admissibility of intercepted communication
(2) The contents of a private communication that is obtained from an interception pursuant to subsection (1) are inadmissible as evidence except for the purposes of proceedings in which actual, attempted or threatened bodily harm is alleged, including proceedings in respect of an application for an authorization under this Part or in respect of a search warrant or a warrant for the arrest of any person.

– CCC

This requires that:

1. consent of one of the parties to the interception;
2. the interceptor reasonably believes there is a risk of bodily harm to the consenting party;
3. the purpose of the interception is to prevent bodily harm (such as to an undercover peace officer making a drug buy).

Wiretaps under 184.2 do not require the affiant to establish "investigative necessity" for the wiretap.

Search and Seizure/CDSA Warrants

General Principles

Section 11(1) of the Controlled Drugs and Substances Act concerns warrants relating to drug offences:

11. (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that:

(a) a controlled substance or precursor in respect of which this Act has been contravened,

(b) anything in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,

(c) fence-related property, or

(d) anything that will afford evidence in respect of an offence under this Act.

– CDSA

A CDSA search warrant can be issued by a justice of the peace, provincial court judge or superior court judge.

The requirements for a CDSA search warrant are the same as those under a General Warrant.

Search and Seizure/Foreign Warrants

Search warrants coming from outside of the province

Section 487.03 governs the execution of warrants from outside of the province:

Execution in another province
487.03 (1) If a warrant is issued under section 487.01, 487.05 or 492.1 or subsection 492.2(1) in one province, a judge or justice, as the case may be, in another province may, on application, endorse the warrant if it may reasonably be expected that it is to be executed in the other province and that its execution would require entry into or on the property of any person, or would require that an order be made under section 487.02 with respect to any person, in that province.

Endorsement
(1.1) The endorsement may be made on the original of the warrant or on a copy of the warrant that is transmitted by any means of telecommunication and, once endorsed, the warrant has the same force in the other province as though it had originally been issued there.

(2) [Repealed, 2007, c. 22, s. 7]

1993, c. 40, s. 15; 1995, c. 27, s. 1; 2000, c. 10, s. 13; 2007, c. 22, s. 7; 2008, c. 18, s. 12.

– CCC

Search warrants coming from outside of Canada

Sections 10 to 16 of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) govern the use of foreign search warrants applicable to matters within the jurisdiction of Canada.

See Also

• Mutual Legal Assistance Treaty (MLAT) between the US and Canada

Search and Seizure/General Warrants

General Principles

Section 487(1) provides police with a general power to "use any device or investigative technique, or procedure" or otherwise do any thing described in the warrant which would constitute an unreasonable search or seizure.

The section states:

487.01(1) A provincial court judge…may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if

(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;

(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and

(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.

(2) Nothing in subsection (1) shall be construed as to permit interference with the bodily integrity of any person.

(3) A warrant issued under subsection (1) shall contain such terms and conditions as the judge considers advisable to ensure that any search or seizure authorized by the warrant is reasonable in the circumstances.

– CCC

A warrant under this section requires:

1. reasonable and probable grounds that,
   1. offence has been or will be committed or
   2. information concerning the offence will be obtained; and,
2. it is in the best interests of the administration of justice; and,
3. there is no other statutory authority permitting peace officers to do this search or seizure

Purpose of Search

A general warrant can only be used to seize tangible objects. This means that intangibles, such as money, are not applicable.

Such a warrant however cannot be used to search a person or seize anything on a person.

Finger prints cannot be taken with a 486 warrant.

A bullet found inside an accused person cannot be included.

Manner of Search

A 487 warrant may authorize an "covert" search.

Video surveillance

A warrant is only needed when video surveillance is set-up in such a way that it collects information for which there is a reasonable expectation of privacy. So a camera in a public place such as a street does not need a warrant, but a camera filming the inside of a dwelling would need one.

A video camera requires a warrant where filming:

• a hotel room
• a washroom stall

Lawyer's Office

When searching a lawyer's office, the police have a duty to minimize which requires:

1. that a search not be authorized unless there is no other reasonable solution and,
2. that the authorization be given in terms that, to the extent possible, limit the impairment of solicitor-client privilege

Search and Seizure/Telewarrants

Search and Seizure Topics

• Rights against Search and Seizure
• Reasonable Expectation of Privacy
• Warrantless Searches
  • Search by Consent;
  • Search Incident to Detention;
  • Search Incident to Arrest;
  • Search for Abandoned Property;
  • Search in Plain View;
  • Exigent Circumstances
• Warrant Searches
  • Execution of Warrants
• Types of Warrants
  • Bodily Samples
  • Wiretaps
  • CDSA Warrants
  • Tracking Warrant
  • Foreign Warrants
  • Telewarrants
• Seizure of Property
• Exclusion of Evidence
• Waiver of Charter Rights

See Also

• Canadian Criminal Procedure and Practice/Appendix/Case Law (Charter)

Exclusion of Evidence

General Principles

Where there has been a finding of a breach of any right under the Charter, the applicant may apply to have evidence excluded from the trial under s. 24(2) of the Charter which states:

Exclusion of evidence bringing administration of justice into disrepute
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

The Supreme Court of Canada made a complete revision of the analytical approach in R. v. Grant, 2009 SCC 32. Under Grant, there are "three avenues of inquiry" that a court must consider:

“

...when faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute...

”

In balancing these factors, the judge should consider all the circumstances of the case.

This analysis should focus on the "long-term, prospective and societal" effect of the violations.

The analysis should be from an objective view and ask "whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute"

There is no rule requiring the automatic exclusion of a statement obtained by Charter violations.

A appellate court should give a discretionary decision of a judge, such as in a 24(2) analysis, high deference. The judge should only interfere where "the judge did not give weight to all relevant considerations".

Seriousness of police misconduct

This factor considers the effect of the police misconduct on the reputation of the justice system. Effectively, considering whether the courts are "condoning" the deviation from the rule of law by failing to disassociate themselves from the fruits of the misconduct.

However, an over-readiness to exclude for "fleeting and technical violation[s]" is likely "to be seen as symptom of systemic impotency which would breed public contempt for the criminal justice system"

Factors the court must consider include:

• Was the breach “inadvertent or minor” or a result of willful or reckless or deliberate disregard for the Charter?
• Did the police act in good faith?
• Were there “extenuating circumstances”?

The gravity of the conduct depends on the degree of intention of the officer, ranging from inadvertent or minor violations to wilful or reckless disregard for Charter rights.

Flagrant disregard of Charter right are to be treated differently than breaches arising out of conduct that is in accordance with the law.

The Court should consider "what the police did and their attitude when they did it".

The presence of ignored lesser intrusive options to chosen the method of investigation will have an aggravating effect on the seriousness of the Charter breach.

A "cavalier" attitude to the use of police powers will also aggravate the breach.

Whether the conduct was an isolated incident or part of a larger pattern of police disregard of Charter rights will affect the seriousness of the breach. This can usually come out through voir dire evidence of whether the officer was acting on an established practice.

The seriousness can be mitigated by factors such as "good faith" on the part of the officer or extenuating circumstances that may warrant quick action to avoid losing evidence.

Good faith, if established, will favour admission because it will "reduce the need for the court to disassociate itself from police conduct".

The presence of reasonable and probable grounds for the police conduct will lessen the seriousness of the violation.

Entry into a residence with an invalid warrant or without any warrant is considered a serious violation of the accused's rights and tends to lean towards exclusion.

Impact on personal interests

The impact on the personal interests is a two part inquiry. First, the interest engaged must identified, and then the degree to which the violation impacted this interest must be considered.

The impact can range from fleeting and technical to profoundly intrusive.

Being stopped and searched without justification impacts liberty and privacy in more than a trivial manner.

Stopping a vehicle creates a lesser impact on personal interests than a search of a residence.

The older test under Collins placed emphasis on the discoverability of the evidence, inquiring whether the evidence would have been otherwise discovered during the investigation. Under the new model, the discoverability is still relevant to the first two branches of the analysis but less crucial to the analysis.

In the context of an roadside screening demand, it has been said that only the breaching event is to be considered in determining the impact on personal interests. The judge should not consider the events that follow including the subsequent arrest, personal consequences, or employment consequences.

The "more likely that the evidence would have been obtained even without [the impugned statement of the accused] the lesser the impact of the breach on the accused’s underlying interest against self-incrimination".

Interest in Trying Case on Merits

The third step considers the "truth-seeking function" of the trial process.It is presumed that society has an interest in adjudicating matters on the merits. A balance must be made between the effect of its exclusion to the effect of its inclusion.

The "reliability" of the evidence is an important inquiry. If the breach brings the reliability into question it will favour exclusion.

The importance of the evidence on the Crown's case is also important. Where the exclusion would effectively "gut" the case, it will be a factor in favour of admission.

The seriousness of the offence has some importance, but can "cut both ways". The importance of the short-term desire to convict for serious offences is balanced against the need for fair conduct where the penalty is so great.

There will be cases where the seriousness of the offence is considered "neutral".

Interests for specific offences

Motor Vehicle Offences

Cases have addressed society's interest screening of impaired drivers to reduce the carnage on our highways prefers the inclusion of evidence.

The ASD procedure has been described as a "non-invasive" and "does not undermine bodily integrity or dignity".

Weapons Offences

In consideration under s.24(2) of the Charter, courts have commented on the public interest with respect to gun cases:

Offences involving handguns is a “serious and growing societal danger”. There is a strong emphasis on the need to denounce and deter the use of firearms in public places. There has been judicial notice that as of 2007 there has been a national increase in gun violence and gun-related offences.

It has been said that "the exclusion of firearms would more negatively impact the administration of justice than their admission."

Pre-Grant Analysis

Collins/Stillman Analysis

Under the Collins test, the administration of justice is brought into "disrepute" where a combination of three factors weight in favour of exclusion of evidence. These sets of factors consist of:

1. factors affecting the fairness of the trial,
2. factors relevant to the seriousness of the violation; and
3. factors relevant to the effect of excluding the evidence.

The Stillman test considers the first set of factors. It examines the nature of the evidence and alternatives to its discovery. The Stillman test directs the following analysis:

1. Classify the evidence as conscriptive or non-conscriptive based on the manner in which the evidence was obtained. If the evidence is non-conscriptive, its admission will not render the trial unfair and the Court will proceed to consider the seriousness of the breach and the effect of exclusion on the repute of the administration of justice.
2. If the evidence is conscriptive and the Crown fails to demonstrate on a balance of probabilities that the evidence would have been discovered by alternative non-conscriptive means, then its admission will render the trial unfair. The Court, as a general rule, will exclude the evidence without considering the seriousness of the breach or the effect of exclusion on the repute of the administration of justice. This must be the result since an unfair trial would necessarily bring the administration of justice into disrepute.
3. If the evidence is found to be conscriptive and the Crown demonstrates on a balance of probabilities that it would have been discovered by alternative non-conscriptive means, then its admission will generally not render the trial unfair. However, the seriousness of the Charter breach and the effect of exclusion on the repute of the administration of justice will have to be considered.

Conscriptive Evidence

Evidence that is conscriptive is a factor against the admission of evidence obtained by a Charter violation.

Conscriptive evidence affects the trial fairness factor.

Conscriptive evidence is evidence that arises from any of the following:

1. statements
2. use of the accused's body
3. taking of bodily sample
4. evidence derived from the above (derivative evidence)

Evidence that is conscriptive and not otherwise discoverable will tend to be excluded.

A voluntary statement cannot be conscriptive.

Conscriptiveness must be proven by the Accused on a balance of probabilities.

Discoverable evidence is evidence that 1) can be proven by other non-conscriptive means or 2) would inevitably be discovered.

Discoverability must be proven by the Crown on a balance of probabilities.

Relevant Charter Rights

• Rights against Search and Seizure
• Right to Counsel
• Right against Arbitrary Detention

Waiver of Charter Rights

General Principles

The waiver of any Charter right must be done clearly and unequivocally with full knowledge of the scope of the right and effect of the waiver.

It is necessary for the Crown to prove waiver of an accused right under s.8.

An express or implied invitation, such as at the attendance of police at the door of a residence or being invited into the house, results in the waiving of privacy.

See Also

• Consent Search

Search and Seizure/Seizure of Property

Seizure of Things Not Specified

Section 489 authorizes police officers to seize certain property. It specifically addresses the situation where police seek to seize property other than what is specified in the warrant.

Seizure of things not specified
489. (1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, any thing that the person believes on reasonable grounds

(a) has been obtained by the commission of an offence against this or any other Act of Parliament;

(b) has been used in the commission of an offence against this or any other Act of Parliament; or

(c) will afford evidence in respect of an offence against this or any other Act of Parliament.

Seizure without warrant
(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds

(a) has been obtained by the commission of an offence against this or any other Act of Parliament;

(b) has been used in the commission of an offence against this or any other Act of Parliament; or

(c) will afford evidence in respect of an offence against this or any other Act of Parliament.

R.S., 1985, c. C-46, s. 489; R.S., 1985, c. 27 (1st Supp.), s. 72, c. 42 (4th Supp.), s. 3; 1993, c. 40, s. 16; 1997, c. 18, s. 48.

– CCC

Under s. 489, a peace officer in lawful execution of their duty may seize anything without a warrant that they reasonably believe to be:

1. obtained by crime;
2. used in a crime; or
3. affords evidence of a crime.

All items that are seized must be reported to a justice of the peace pursuant to s. 489.1. The justice of the peace will grant a detention order for a period of time. The property must be returned on the expiration of the order unless the justice grants an extension under s. 490(1) or if charges are laid.

This section does not codify or incorporate any part of the common law doctrine of "plain view".

Procedure Upon Seizure of Property

Section 489.1 governs the procedure to be followed by the police upon seizing property, whether under warrant, warrantless, or otherwise under an Act of Parliament including s. 489. This applies to seizure on search incident to arrest as well as seizure incidental to a search warrant.

489.1 (1) Subject to this or any other Act of Parliament, where a peace officer has seized anything under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,

(a) where the peace officer is satisfied,

(i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and

(ii) that the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding,

return the thing seized ... to the person lawfully entitled to its possession and report to the justice who issued the warrant ... or, if no warrant was issued, a justice having jurisdiction in respect of the matter, that he has done so; or

(b) where the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii),

(i) bring the thing seized before the justice referred to in paragraph (a), or

(ii) report to the justice that he has seized the thing and is detaining it or causing it to be detained

to be dealt with by the justice in accordance with subsection 490(1). ...

Form
(3) A report to a justice under this section shall be in the form set out as Form 5.2 in Part XXVIII, varied to suit the case...

R.S., 1985, c. 27 (1st Supp.), s. 72; 1993, c. 40, s. 17; 1997, c. 18, s. 49.

– CCC

Under s. 489.1(1)(b)(ii), where the police seize property either in execution of a warrant or otherwise in execution of their duties, they must file a Report to Justice that is filed with the justice of the peace.

This will permit the officer to hold onto the property for a period of 90 days without laying charges. Where further time is needed the officer must apply for a further detention order under s. 490.

Inventory Searches

Seizure of property will create an authority to perform a warrantless search the items seized for the purpose itemizing them and ensuring safe keeping. It cannot be searched for the purpose of advancing an investigation.

Detention Order

Section 490 governs the procedure for detaining property seized under s. 489 or 489.1, including obtaining the approval of justice to detain the property for a period of time.

An order can be made by a justice of the peace to allow the police to detain property under s.490(1):

Detention of things seized
490. (1) Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(b) or subsection 489.1(2), anything that has been seized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall,

(a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or

(b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seized should be detained for a reason set out in paragraph (a), detain the thing seized or order that it be detained, taking reasonable care to ensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminary inquiry, trial or other proceeding.

– CCC

Section 489.1 and 490, together set out an administrative scheme for managing detained property in the course of a criminal investigation as well as returning property.

These provisions establish "a predictable, fair, efficient, and orderly procedure for the detention, retention, return, and forfeiture of seized items, consistent with the interests of justice." Non-compliance is not to be translated into "substantive trial remedies" such as a stay of proceedings. Failure to comply may result in the return of the property. However, "may not make such an order if it is not in the interests of justice to do so."

Other courts have suggested that a failure to comply with the provisions, in particular, make a filing under s.489.1, will render the search unlawful.

Still other courts have been reluctant to provide trial remedies.

The obligations imposed by s. 489.1 and 490 are mandatory.

These provisions "safeguard in the balance between the state’s jurisdiction to invade the privacy rights of citizens and the high value that Parliament and the courts have seen fit to ascribe to those rights".

The onus is on the applicant to prove on a balance of probabilities that the provisions were not complied with.

Once property has been detained under s. 490, it is considered "under the control of the court, not the Crown or anyone else." Thus, can only be disposed of pursuant to an order of the court.

Extending Time Period of Detention

Under s. 490(2), all property that is seized by police must be released after the detention period. That is, unless there are proceedings "instituted in which the thing detained may be required." (s. 490(2)(b)) This would include criminal charges where the thing may be part of the evidence for trial.

Under s. 490(2)(a), the party may apply to have property seized pursuant to s. 490(1) detained past the time limit where "a justice, on the making of a summary application to him after three clear days notice thereof to the person from whom the thing detained was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period is warranted and the justice so orders"

Release and Return of Property

A Superior Court Justice has inherent jurisdiction to order the return of property seized by the police where the items are not needed for trial and otherwise not needed to be held by the police.

Access to Exhibits

Release of Exhibits for Testing

All objects that are put in as exhibits before the court may be released for the purpose of testing on application of a party.

Section 605 states:

Release of exhibits for testing
605. (1) A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction may, on summary application on behalf of the accused or the prosecutor, after three days notice to the accused or prosecutor, as the case may be, order the release of any exhibit for the purpose of a scientific or other test or examination, subject to such terms as appear to be necessary or desirable to ensure the safeguarding of the exhibit and its preservation for use at the trial.

Disobeying orders
(2) Every one who fails to comply with the terms of an order made under subsection (1) is guilty of contempt of court and may be dealt with summarily by the judge or provincial court judge who made the order or before whom the trial of the accused takes place.

R.S., 1985, c. C-46, s. 605; R.S., 1985, c. 27 (1st Supp.), s. 203.

– CCC

The application may be made before either a superior court judge or a provincial court judge on three days notice.

Once the proceedings are complete and all avenues of appeal are exhausted this section no longer applies to exhibits.

Media Access to Exhibits

The right to access to exhibits flows from the "open court principle".

Dagenais/Mentuck test should apply to requests of third-parties to access exhibits.

The test requires the party opposing access to show that it is "necessary to prevent a serious risk to the proper administration of justice and that the salutary effects of the order sought outweigh the deleterious effects on the rights and interests of the parties and the public."

Special Seizure Powers

Firearms

Exigent Circumstances

Under s.117.02, an officer believes that a firearm or related item "was used in the commission of an offence" or where there was, or is ongoing, an offence where the subject-matter is a firearm or related item and the officer believes the item "is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house", then the officer may search the premises or person without a warrant, so long as it under exigent circumstances where it "would not be practicable to obtain a warrant".

Failure to Produce Authorization

Under s. 117.03, where a person is found in possession of a firearm or related items and cannot produce the appropriate documents authorizing them to possess it, an officer may seize the items. If the proper documentation is produced within 14 days, the officer must return the items seized. If 14 days pass without producing the authorization, the officer may apply to the court to have the firearm forfeited.

Danger to self or public

Under s.117.04, an officer may seize a firearm from someone in lawful possession of it where the officer believes he may pose a danger to themselves or the public. A warrant is required unless there are exigent circumstances such that "by reason of a possible danger to the safety of that person or any other person, it would not be practicable to obtain a warrant".(s. 117.04(2))

Under s.117.05, the officer may apply to forfeit the firearm after 30 days where it can be established that forfeiture is in the "interests of the safety of the person". (see Canadian_Criminal_Sentencing/Ancillary_Orders/Forfeiture#interests_of_the_safety)

See Also

• Canadian Criminal Sentencing/Forfeiture
• Canadian Criminal Procedure and Practice/Disclosure#Lost Evidence

Cases/Warrantless Searches

Detention and Search: Generally

Case	Citation	s.8	s.9	s.24	Summary
R. v. Ahmed-Kadir and McFadyen	2011 BCPC 250	N	Y	N
R. v. Brown	2011 ONSC 6250	-	N	N	vehicle pulled over after chase; alleged detained by police pursuit
R. v. Ryan	2010 NJ No. 173	N	Y	Y	breath test
R. v. G.C.	2010 NSPC 10 [14]	N	N	N	while executing search warrant, pat-down search of accused for weapons; finds drugs
R. v. Cunsolo	2009 CanLII 60775 (ON S.C.)	N	Y	N	premature arrest of fraudster
R. v. N.O.	2009 ABCA 75	N	Y	Y	police observe hand-to-hand, search accused, find drugs
R. v. Harada	2008 BCSC 1346	N	N	N	pull over car; patdown search of driver
R. v. Nesbeth	[2008] O.J. No. 3086 (C.A.)	-	Y	Y
R. v. Peters	2007 ABCA 181	N	N	N	police see accused matching description of person with gun; searched backpack twice, found gun
R. v. Chambers	2007 ABQB 712	N	N	N	after seeing signs of drug transaction, accused is strip searched, and searched vehicle
R. v. Y.(S.)	2006 ONCJ 403	N	N	N	person standing near car registered to person with warrant; several minor reasons for pull-over
R. v. Ngo	2005 ONCJ 217				arbitrary detention
R. v. B.A.D.G.	2005 BCPC 504	N	N	N	police get report of B&E suspects, see accused shortly after; patdown search reveals knife
R. v. Sepulveda	2005 BCPC 236	N	N	N	pat-down search of woman known to police; accused spit on officer
R. v. K.W.	2004 O.J. No.5327 (OCJ)		Y		police officers had no grounds to suspect that the accused was connected to any criminal activity; he “must be doing something” because of the very general surrounding circumstances.
R. v. Power	2003 SKQB 334
R. v. Burke	1997 CanLII 10867 (NL C.A.)	N	N	N	overturn s.9 breach; officer had sufficient reason to pull over accused

• R. v. Dauda, 2011 ONCJ 799 || s.8 and 9 violation, exlcuded under 24(2); seen avoiding police, threw something away; found <4 g cocaine

Vehicle Stops

• R v Vulic, 2012 SKQB 221 - violated s.9, drugs excluded
• R. v. McCammon, 2012 MBQB 154 - violated s. 9, evidence excluded

Personal Search

Case	Citation	s.8	s.9	s.24	Summary
R. v. Rose	2012 ONSC 350	?	Y	Y	arrested accused based on finding marijuana on co-accused.
R. v. Osolky	2009 ONCJ 445	Y	N	Y	patdown search; evidence excluded
R. v. F. (C.J.)	2008 SKPC 51	N	N	N	officer responds to mischief complaint; sees youths; accused run away; searches him and finds weapon;
R. v. Ferdinand	2004 O.J. No. 3209 (SCJ)	Y		Y	officer’s hunch about the actions of the accused, (based on his “Spidey sense,”) was insufficient basis

Vehicle Search

Case	Citation	s.8	s.9	s.24	Evidence at issue	Summary
R v Turpin	2012 SKCA 50	Y	Y	Y	drugs
R. v. Forster	2009 ABPC 278	Y	-	Y	drugs	search of vehicle incident to arrest was improper. The officer cannot have reasonably expected to find evidence in vehicle from an offence 6 months prior.(para. 18-19). Excluded under s. 24(2), police were careless.
R. v. Anderson	2011 ABPC 326	Y	N	Y	crack cocaine	drugs found in vehicle
R. v. Ruddock	2011 ABPC 105	Y	N	Y		also found breach of s.10(a) and 10(b)
R v Savage	2011 SKCA 65	N	N	N		use of sniffer dog;
R. v. Chubak	2009 ABCA 8	N	-	-	drugs	Officers respond to report of stabbing/beating—see vehicle with D inside with bear spray- D searched and find knife on him; police search car for more weapons; police find weapons, drugs, and ringing cell phone; trial judge says police can’t search for drugs; appeal court says they can; search for multiple reasons is valid as long as objectively justified (para. 18)
R. v. Arabi	2007 ABQB 303	Y	Y	Y		search of person and vehicle after seeing possible drug transaction
R. v. Dykhuizen	2007 ABQB 489	Y	-	?		mistaken ID of accused for a kidnapping suspect; found licence was expired; searched
R. v. Calder	2006 ABCA 307	Y	Y	Y	gun	sees possible drug transaction; searches backpack, finds gun
R. v. T.T.H.	2006 ABPC 320	Y	-	N		search vehicle based on unsafe driving and suspicious comments from driver
R. v. Batzer	2005 CanLII 33026 (ON C.A.)	Y	N	Y		search of glovebox of car after detaining accused on rough description
R. v. Cox	1999 CanLII 13119 (NB C.A.)	Y	Y	Y		plainclothes officer searched car at roadblock due to smell of "bulk" tobacco
R. v. Keshane	1995 CanLII 4054 (SK C.A.)	Y	-	N		warrantless search of a trunk of accused's car
R. v. D. (I.D.)	1987 CanLII 206 (SK C.A.)	Y	-	?		search of vehicle on spotting it stopped in ditch and detect smell of alcohol

Smell of marijuana

Case	s.8	s.9	s.24	Summary
R. v. Fierro, 2012 ABPC 1	N	N	N	detailed review of law
R. v. Grunwald, 2010 BCCA 288	N	N	N	traffic check set-up; stops accused's vehicle, smells marijuana, sees large bags in back of truck; no expectation of privacy
R. v. Harding, 2010 ABCA 180	N	N	N	police stop car, obscured plates, rental car, two large bags in the back, smell marijuana -- search incident to arrest finds drugs -- no breach of s.10(b)
R. v. Pearson, 2009 ABQB 382	Y	-	N	breach found but evidence admitted
R. v. Hood, 2008 BCPC 217	Y	?	Y
R. v. Rosa, 2008 ABQB 723
R. v. Webster, 2008 BCCA 458	N	N	N
R. v. Favorite, 2008 CanLII 13364	N	N	N
R. v. Charles, 2007 CanLII 39760 (ON SC)	Y	?	Y
R. v. Huynh, 2005 ABPC 238	N	-	-	no s.8 breach found
R. v. Calderon, 2004 CanLII 7569	Y	Y	Y
R. v. Ladouceur, 2002 SKCA 73	?	Y	Y
R. v. Sewell, 2003 SKCA 52	N	-	-
R. v. Power, 2003 SKQB 334	N	N	N
R. v. Yan & Chan, 2002 BCPC 574	Y	-	Y	pull over on basis of broad search for cat burglar; smells marijuana from car ; breach of s. 8 found -- evidence excluded
R. v. Duong, 2002 BCCA 43	N			no s.8 breach -- smell of marijuana coming out front door of house
R. v. Zagar, 1998 ABPC 59	Y	-	Y
R. v. Lawrence, [1994] O.J. No. 3272	N	N	N	smell fresh burnt marijuana; allowed search down pants of accused
R. v. Iturriaga, 1993 CanLII 2517 (BC CA)	Y	?	Y

Informers/Tips

Case	s.8	s.9	s.24	Summary
Hewlett v. R., 2012 CanLII 46405 (NL SCTD)	N	-	N	search warrant
R. v. Gorman and Gorman, 2012 ONSC 4605	N	-	N	search warrant
R v Franko, 2012 ABQB 282	N	-	N	confidential source reports drug dealers activities
R v Perpeluk, 2012 SKQB 189	Y	-	Y	two confidential informers give tips
R. v. Quach, 2012 ABPC 57	N	N	N	evidence admitted, judge had no issue with motive of informer
R. v. Soto, 2011 ONCA 828	N	N	N	informer reports dealing out of a house; police corroborate with observations of house
R. v. Bick, 2011 ONCJ 503	N	N	N	search of house based on tip
R. v. Hillgardener, 2010 ABCA 80	N	N	N	anonymous informer was reliable
R. v. Jir, 2010 BCCA 497	Y	N	N
R. v. Safi, 2010 ABCA 151	N	N	N
R. v. Raphael, [2010] O.J. No. 5916, 2010 ONSC 5709	Y	Y	Y
Bjornson, 2009 BCSC 1779	N	N	N
R. v. Tetreault, 2007 BCSC 1624	N	-	N
R. v. Wing, 2007 BCSC 1959	Y	?	N
McCallum, 2006 SKQB 287	N	N	N
Goodine v. R., 2006 NBCA 109	N	?	N
R. v. Layton, 2006 BCPC 655	N	?	?
R. v. Murphy, 2006 CanLII 12417 (ON CA)	N	N	N	confidential informer gave sufficient details to form grounds of arrest
R. v. Bracchi, 2005 BCCA 461 [15]	N	N	N
R. v. Campbell, 2003 MBCA 76 (CanLII) [16]	Y	-	N
R. v. Myers, 2003 CanLII 36859 (ON SC)	Y	N	N
R. v. Ungaro, 2003 BCPC 137	Y	?	Y
R. v. Philpott [2002] O.J. No. 4872				search warrant
R. v. Jones, 2001 CanLII 28336 (ON SC)	Y	-	Y	warrant to search apartment
R. v. Warford, 2001 NFCA 64	N	N	N
R. v. Lewis, 1998 CanLII 7116 (ON CA)	Y	-	N
R. v. Smellie, 1994 CanLII 1612 (BC CA)	N	N	N	multiple informers
R. v. Zammit, 1993 CanLII 3424 (ON CA)	Y	-	Y
R. v. Lamy, 1993 CanLII 3368 (MB CA)	Y	-	Y
R. v. Charlton, 1992 CanLII 367 (BC CA)	N	N	N
R. v. Cheecham, (1989) 51 C.C.C. (3d) 498	Y	?	Y
R. v. Pastro 1988 CanLII 214 (SK C.A.)	Y	?	Y

Search Incident to Arrest

Case	s.8	s.9	s.24	Summary
R v Schira, 2011 SKPC 140	Y	N	Y	breach of s.10(b) as well; contents of blackberry messages excluded
R. v. Ward, 2010 BCCA 1	Y	?	N	search incident to arrest -- found crack
R. v. Tosczak, 2010 SKCA 10	N	?	N	pat-down search incident to arrest for possession of marijuana
R. v. Goodwin, 2009 ABQB 710	Y	?	?	arrest invalid
R. v. Chubak, 2009 ABCA 8	?	?	?
R. v. Lamour, 2007 CanLII 15242 (ON S.C.)	Y	?	N	arrested accused from impaired driving; did inventory search that included non-plain view items
R. v. Roberts, 2007 CanLII 39895 (ON S.C.)	N	N	N	search vehicle incident to arrest for firearm lawful
R. v. Kitaitchik, 2002 CanLII 45000 (ON C.A.)	Y	?	N	warrantless seizure of clothing worn by accused in murder investigation

Search of residence

Case	s.8	s.9	s.24	Summary
R. v. Latham and Ryan, 2012 BCPC 78	Y	-	Y	warrantless search of basement apartment
R v Helary, 2012 SKPC 15	Y	?	Y
R v Laliberte, 2011 SKPC 190	Y	-	N	source info brings police to house; they are invited into vestibule; smell marijuana; enter into reminder of house after accused runs away. No consent to enter.
R. v. Got, 2011 BCPC 328	Y	?	?	warrantless entry into residence found in violation of s.8
R. v. Stevens, 2011 ONCJ 794	Y	-	Y	police enter home without warrant and search house
R. v. Thompson, 2010 ONSC 2862	Y	-	N	search of home found drugs
R. v. Watson, 2010 ONSC 448	Y		Y	pat-down search finds drugs; followed by search of residence

Breath sample

See Canadian_Criminal_Law/Appendix/Case_Law#Impaired_Driving

Cell phones

Case	Summary
R. v. Mann, 2012 BCSC 1247 (CanLII)
R. v. Munro & Munro, 2012 ONSC 43	cell phone search indicent to arrest -- admitted
R. v. Groves, 2011 ONCJ 350
R. v. Dorey, 2011 NSPC 85
R. v. Hiscoe, 2011 NSPC 84
R. v. Manley, 2011 ONCA 128
R. v. Fearon, 2010 ONCJ 645
R. v. Zahrebelny, 2010 NSPC 91
R. v. Finnikin, 2009 CanLII 82187 (ON SC)

Location Tracker

Case	Summary
R. v. Bacon, 2012 BCCA 323	warrantless tracker violated s.8 but saved under 24(2)

Cases/Warrant Searches

Generally

Case	Citation	s.8	s.24	Summary
R. v. Dowling	2011 ABQB 790	N	N	search warrant of house with suspicious traffic
R. v. Mahmood	2011 ONCA 693	N	-	warrant for cell phone number log upheld
R. v. Ngo	2011 ONSC 6676	N	-	search warrant upheld on s. 8 challenge
R. v. Lee	2011 ABCA 310			warrant to enter home upheld
R. v. Nguyen	2011 ONCA 465			search warrant challenged; no violation
R. v. Pike	2010 NLTD 97	Y	?	secured blood samples prior to warrant being issued
R. v. Nguyen	2002 BCPC 12	N	-	search warrant executed to search house; police also searched parked car
R. v. Puskas	1997 CanLII 1159	Y	N	Search warrant to house based on anonymous tip upheld trial level acquitted; overturned on issue of s.24(2) analysis
R. v. Nguyen and Nguyen	2010 ONSC 1520	Y	Y
R. v. Parasiris	2008 QCCS 2460	Y	?

• R. v. Watts, 2012 ONSC 1865 -- no s.8 violation—ITO search warrant for hard entry into house looking for guns and drugs—warrant based on confidential informer—contained errors—upheld
• R. v. Darby, 2012 ABCA 27 || ITO upheld anonymous informer
• R. v. Dionisi, 2012 ABCA 20 || ITO upheld, based on anonymous informer
• R. v. Morgan, 2012 ONCA 28 -- ITO found valid despite errors in affidavit

Tele-warrants

• R v Lendzion 2012 ABPC 59 -- upheld

Wire taps

R. v Bulatci, 2012 NWTCA 6 -- wiretap of accused in prison violated s.8 but admissible

• R. v. Martin, 2010 NBCA 41 [17] || breach of s.8 found, evidence NOT excluded under s. 24(2)
• R. v. Della Penna, 2012 BCCA 3 || wiretap allowed on appeal

Bodily sample

• R. v. Ramage, 2010 ONCA 488 -- breach s. 8; saved under s.24(2)
• R. v. Emshey, 2010 ABPC 237 -- s.8 violation; admitted under s.24(2)