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Canadian Criminal Procedure and Practice/Search and Seizure/Warrantless Searches/Consent Search

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Principles

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A search conducted with valid consent is lawful.[1]

Valid consent exists where the following is present:[2]

  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.[3]

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.[4]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.”[5]

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.[6]

The Crown must establish that the accused right to be searched was waived clearly and unequivocally.[7] However, where the accused is given access to counsel there is a presumption of informed consent unless the accused shows otherwise.[8]

Once consent is given there is no future expectation of privacy.[9]

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” [10]

Consent to enter a home does not include a blanket right to search the whole house including the basement.[11]



  1. ↑ R. v. Chang, 2003 ABCA 293 at 28
  2. ↑ R. v. Wills, 1992 CanLII 2780 (ON CA), (1992), 70 C.C.C. (3d) 529 at 69
    R. v. Cooper, 2011 ABQB 17 at 35-41
    R v Borden 1994 CanLII 63 [1994] 3 SCR 145
  3. ↑ R v Bergauer-Free 2009 ONCA 610 at 57
    See also R v Goldman, 1979 CanLII 60 (SCC), [1980] 1 SCR 976 at p. 1005
  4. ↑ R. v. Wills (1992), 12 C.R. (4th) 58 at 78 (Ont. C.A.)1992 CanLII 2780
    R. v. Borden 1994 CanLII 63 (S.C.C.), (1994), 33 C.R. (4th) 147 at 158
    R v S.S. 2008 ONCA 578 at 48, 52
    c.f. R v Lupien 1995 68 QAC 253 (CA)
    R v Blackstock (1997) 10 CR 5th 385 (ONCA)
    US v Drayton 536 US 194 (2002) - police need not inform of right as long as there was no coercion, intimidation, or confrontation
  5. ↑ R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145
  6. ↑ R v Lewis (1998) 122 CCC 3d 481 (ONCA)
  7. ↑ R v Collins [1987] 1 SCR 265
  8. ↑ R v Williams (1992) 76 CCC 385 (BCSC)
    R v Deprez (1994) 95 CCC 29 (MBCA)
  9. ↑ R v Arp [1998] 3 SCR 339 at 90
  10. ↑ R. v. Evans, [1996] 1 SCR 8, at para. 13 [1], citing R. v. Tricker 1995 CanLII 1268 (ON CA), (1995), 21 O.R. (3d) 575, at p. 579
  11. ↑ R v Smith (1998) 128 CCC 3d 62 (ABCA)
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An "authorized occupant" of a residence may give consent to a search.[1]

A homeowner can authorize a search.[2]

A landlord or neighbour does not constitute an "authorized occupant".[3]

Guests can have the authority to consent to a search of a home, however, the authorization can be revoked by the homeowner.[4]


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.[5]

  1. ↑ R v Duarte 1987 38 CCC 3d 1 (ONCA) at p11
    R v Currie 2008 ABCA 374
  2. ↑ R v Smith 1998 ABCA 418 at 5
  3. ↑ R v. Mercer (1992) 70 CCC 180 (ONCA) - landlord
    R v Blinch 1993 83 CCC 3d 158 (BCCA)
  4. ↑ R v Thomas 1991 CanLII 2736 (NL CA) aff'd at SCC
  5. ↑ R. v. DiPalma, 2008 BCCA 342 (CanLII)
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A court order, such as a probation order, can in certain circumstances require an offender to consent to random searches.[1]

  1. ↑ R v Unruh, 2012 SKCA 72
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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

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