Full Text:Volume 3

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Contents

Volume III: Search and Seizure

Fundamental Principles

Rights Against Search and Seizure

General Principles

See also: Reasonable Expectation of Privacy

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

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

CCRF

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.[1]

When Protections Engaged
A search is only subject to Constitutional review where the search intrudes on a reasonable expectation of privacy of the accused. [2] Only where the privacy right exists that there is an inquiry into the reasonableness of the search.[3]

Analysis
In any alleged violation of the rights under s. 8 of the Charter the Judge must make two inquiries:[4]

  1. did the accused have a reasonable expectation of privacy
  2. was the search or seizure an unreasonable intrusion on that expectation.

Privacy analysis is from the perspective of a "reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy".[5]

A search consists of any state interference of a person's privacy interests.[6] As such, there is little distinction between the initial intrusion itself and the search subsequent to intrusion. [7]

The police cannot justify an invasion of privacy ex post facto based on the results of the search.[8]

In general terms, the law should not "unduly hamper" the police in criminal investigations.[9]

Interpretation of Rights
All Charter rights, including those in s. 8, "must be broadly and liberally construed to effect its purpose".[10]

Burden
The "right to challenge the legality of a search and seizure" requires the accused to "first discharg[e] the burden of satisfying the court that his personal constitutional rights have been violated".[11]

  1. R v Nicolosi 1998 CanLII 2006 (ON C.A.)
  2. R v Edwards at para 45
  3. R v Edwards
    Hunter et al. v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145
  4. R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128 at para 33
  5. R v Patrick, [2009] 1 SCR 579, 2009 SCC 17 (CanLII), at para 14
  6. R v Law, 2002 SCC 10 (CanLII), [2002] 1 SCR 227, at para 15
  7. R v McCormack, 2000 BCCA 57 (CanLII), [2000] BCJ No. 143 (BCCA) at para 5
  8. R v Kokesch, 1990 CanLII 55 (SCC), (1990), 61 CCC (3d) 207 (S.C.C.) at 227
    R v Genest CanLII 109 (SCC), (1988), 45 CCC (3d) 385 (S.C.C.) at 408
  9. R v Hart, 2012 NLCA 61 (CanLII)
  10. R v Colarusso, [1994] 1 SCR 20, 1994 CanLII 134 (SCC)
  11. R v Pugliese 1992 CanLII 2781 (ON CA), (1992), 71 CCC (3d) 295 (Ont. C.A.)

Meaning and Purpose of Rights Against Search and Seizure

Privacy is "at the heart of liberty in a modern state" and is part of the essence of democratic government.[1]

The right under s. 8 is broader than the traditional concept of privacy as the "right to be let alone". It is about limiting "state power".[2]

The rights are mean to limit state power in order to foster "underlying values of dignity, integrity and autonomy".[3]

Privacy is essential to "well-being of the individual" and is grounded in their "physical and moral autonomy".[4]

It is "essential for the well-being of the individual" and has a profound significance for the public order."[5]

Privacy is a “protean concept”, meaning that it tends to be highly variable and change.[6]

The purpose of the right under s. 8 is to protect "the citizen's right to a reasonable expectation of privacy" [7] and to "prevent unreasonable intrusions on privacy, not to sort them out from unreasonable intrusions on an ex post facto analysis". [8] It is also “to protect the privacy of individuals from unjustified state intrusion”.[9]

It is for these reasons that the principle of reasonable expectation of privacy is a "normative rather than a descriptive standard".[10] A "normative" standard is one that is "making a value judgement" stating that the "values underlying contemporary Canadian society dictate that the state must respect the personal privacy of individuals unless it is able to constitutionally justify any interference".[11]

The right is concerned with balancing the state's interest in law enforcement and privacy interests of persons.[12] It is only when the state can "demonstrate the superiority of its interest to that of the individual" that a search can be valid.[13] This point exists where there is reasonable and probable cause which lies at the point where "point where credibly-based probability replaces suspicion".[14]

The Canadian approach to the right of privacy comes from the US jurisprudence beginning with Katz v U.S. 389 US 347 (1967).[15]

The restrictions on government to engage in searches "go to the essence of a democratic state".[16]

The right to privacy must be balanced against society's interests in "safety, security and the suppression of crime".[17]

The words "search" and "seizure" are to be treated disjunctively. It is possible for one to lawful and at the same time the other one unlawful.[18]

  1. R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128
    R v Dyment, [1988] 2 SCR 417, 1988 CanLII 10 (SCC) at para 17 per LaForest J ("The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state")
  2. R v Tessling, 2004 SCC 67 (CanLII) per Binnie J, at para 12 to 16
  3. R v Plant, [1993] 3 SCR 281, 1993 CanLII 70 (SCC), at p. 293 (SCR)
  4. Dyment, ibid. at para 17
  5. R v Edwards at 61
  6. Tessling, supra at para 25
    R v Patrick at para 38 (privacy "can vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusions occurs, and the purposes of the intrusion")
  7. R v Colarusso, 1994 CanLII 134 (SCC), [1994] 1 SCR 20 at para 70
  8. R v Feeney, 1997 CanLII 342 (SCC), [1997] 2 SCR 13 at para 47
  9. R v Hape, 2007 SCC 26 (CanLII), (2007), 220 CCC (3d) 161 (S.C.C.) at para 161
  10. R v Tessling at para 42
  11. R v Ward, 2012 ONCA 660 (CanLII), at para 82
  12. Tessling, supra at 17
  13. Hunter et al. v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145 at p.160
  14. Hunter v Southam, supra at p. 114, 115
  15. See Hunter v Southam, supra
    See Hutchison, The Law of Search and Seizure at 1-1
  16. Dyment, supra at pp. 427-28 per LaForest J.
  17. Tessling, supra, at para 17
  18. Dyment, supra at p. 431
    R v Craig, 2016 BCCA 154 (CanLII), at para 155 per Bennett JA. (Section 8 of the Charter protects against unreasonable search or seizure. These words are used disjunctively...Thus, it is possible for a search to be reasonable, but a seizure to be unreasonable.")

Meaning of a "Search"

See also: Warrantless Searches

Any police conduct interfering with a reasonable expectation of privacy is a "search".[1]

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".[2]

The "Place" of Search
The "place" where the search takes place can be identified by determining what category of the zone of privacy are implicated.[3] The "zones" of privacy however are not strictly distinguished.[4]

Residences
Knocking at the door for an investigative purpose is not a search.[5] However, in other circumstances it can be a search.[6]

However, going onto private property and peering into windows while attempting to detect odours of marijuana can constitute a search.[7]

An officer who pushes the apartment door open further in order to view the inside of the house better is a "search" and is not covered as implied licence to knock.[8]

An undercover officer who attends on a property by invitation is not a "search".[9]

Vehicles
Merely peering into a car windows at night using a flash-light while the car in on a public highway is not a search.[10]More generally, it has been accepted that a "police officer may use a flashlight at night to observe activities or objects inside vehicles."[11]

An officer who sticks his head partially into a car to smell for marijuana is conducting a search.[12]

Person
A gun shot residue analysis on a suspect constitutes a search.[13]

Police observations of stains on a shirt visible to the public is not a search.[14]

The taking of an accused's photograph at the time of their arrest at the station appears to not be considered a search.[15]

Other Observations
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.[16] This is distinct from detection with the use of technology, such as a sniffer dog or a FLIR device.[17]

Video surveillance will amount to a search whenever the observations are of activities which are expected to have a reasonable expectation of privacy.[18]

The forensic "fingerprinting" of computer files through calculating a file "hash" value on a device, even where the files are not examined by a person, can still be considered a search.[19]

Undercover Agent
An undercover operator who enters a premises by invitation, express or implied, is not breaching the suspect's expectation of privacy and so is not a "search" within the meaning of s. 8 of the Charter.[20]

  1. Hunter v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145
    R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128
    R v Law, 2002 SCC 10 (CanLII), [2002] 1 SCR 227 at para 15 ("...police conduct interfering with a reasonable expectation of privacy is said to constitute a "search" within the meaning of the provision")
    R v Wise, 1992 CanLII 125 (SCC), [1992] 1 SCR 527 at 533 (only “[i]f the police activity invades a reasonable expectation of privacy, [that] the activity is a search”)
    R v Evans, 1996 CanLII 248 (SCC), [1996] 1 SCR 8 at para 11
  2. R v Cole, 2012 SCC 53 (CanLII), at para 34
  3. e.g. R v Patrick, 2009 SCC 17 (CanLII) at para 41 to 45
  4. Patrick, supra at para 42
  5. See R v MacDonald, 2012 NSCA 50 (CanLII) at para 19
    R v Hope, 2007 NSCA 103 (CanLII) at para 27
    R v Evans, at para 8
  6. R v Boughner, 2002 CanLII 44975 (ON CA)
  7. R v Kokesch 1990 CanLII 55 (SCC), (1990), 61 CCC (3d) 207 (S.C.C.)
  8. R v MacDonald, 2014 SCC 3 (CanLII),
  9. R v Roy, 2010 BCCA 448 (CanLII)
  10. See R v Mellenthin 1992 CanLII 50 (SCC), (1992), 76 CCC (3d) 481 (S.C.C.) at 486-87
  11. R. v Diamond, 2015 NLCA 60 (CanLII)
  12. see United States v Luis Edgar Montes-Ramos [1]
  13. R v C.D., 2010 CanLII 22064 (ON SC)
  14. R v Hamadeh, 2011 ONSC 1241 (CanLII) at paras 132 to 145
  15. R v Elzein, 1993 CanLII 3860 (QC CA), (1993), 82 CCC (3d) 455 (QCCA)
    c.f. R v Dilling, 1993 CanLII 1943 (BC CA), (1993), 84 CCC (3d) 325 (BCCA)
  16. R v Rajaratnam, 2006 ABCA 333 (CanLII), 67 Alta. L.R. (4th) 22
  17. e.g. R v Tessling 2004 SCC 67 (CanLII), [2004] 3 SCR 432
  18. R v Wong, 1990 CanLII 56 (SCC), [1990] 3 SCR 36, at pp. 44 and 61
  19. United States v Crist, (2008) No. 07-1634 <http://caselaw.findlaw.com/us-7th-circuit/1190425.html>
  20. R v Fitt (1995), 1995 CanLII 4342 (NS CA), 96 CCC (3d) 341 (N.S.C.A.), aff’d 1996 CanLII 251 (SCC), [1996] 1 S.C.R. 70
    R v Contant, 2008 QCCA 2514 (CanLII), 63 C.R. (6th) 133, leave to appeal ref’d [2009] 1 S.C.R. vii
    R v Gallaugher, 1999 CanLII 2242 (ON CA); [1999] O.J. No. 174
    R v Felger, 2014 BCCA 34 (CanLII)

Meaning of "Seizure"

See also: Warrantless Seizure Under Section 489

A "seizure" in essence is the "taking of a thing from a person by a public authority without that person's consent".[1] An individual who gives something to an officer does not constitute a seizure. Rather it is merely the receipt of a thing.[2] However, where an officer asks that something be forwarded or given to him will amount to a seizure.[3]

It should be remembered that the Charter was intended to promote privacy not property rights.[4] The "enjoyment of property" was specifically rejected from Charter.[5] Seizure cannot apply to a person.[6]

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".[7]

A seizure does not have to be connected to a search.[8]

The line between seizure and "mere finding of evidence" will exist at the point where "it can reasonably be said that the individual ha[s] ceased to have a privacy interest in the subject-matter allegedly seized".[9]

The expropriation of property is not a "seizure".[10]

Taking of a photograph by police has been considered a search or seizure.[11]

Where the state compels the production of documents, even in a regulatory context, will amount to a seizure.[12]

Consent Seizure
Valid consent in this context is determined based on indicia such as:[13]

  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.
  1. R v Dyment, 1988 CanLII 10, [1988] 2 SCR 417 at para 26
    R v Law, 2002 SCC 10 (CanLII), [2002] 1 SCR 227 at para 15
    R v Buhay, 2003 SCC 30 (CanLII), (2003), 174 CCC (3d) 97 (S.C.C.) at 113
  2. R v Wills, 1992 CanLII 2780 (ON CA) at p. 347-348
    Illinois v Rodrigues, 110 S. Ct 2793 (1999)
  3. R v Weir, 2001 ABCA 181 (CanLII) - officer asks ISP employee to forward messages to him
  4. See Hutchison, The Law of Search and Seizure at 2(c)
  5. Hutchison at 2(c)
  6. R v Parton, 1983 CanLII 1181 (AB QB)
    c.f. US law allows seizure of a person (Terry v Ohio, 392 US 1 (1968))
  7. R v Cole at para 34
  8. R v D.L.W., 2012 BCSC 1700 (CanLII) at para 63
  9. R v Dyment, 1988 CanLII 10 (SCC)
  10. Becker v Alberta, 1983 ABCA 161 (CanLII)
  11. R v Abbey, 2006 CanLII 39320 (ON SC), [2006] O.J. No. 4689 (S.C.J.); reversed on other grounds, 97 O.R. (3d) 330 (C.A.), [2010] S.C.C.A. No. 125: police took a photo of the accused's t-shirt after removing it from his body
  12. R v McKinley Transport Ltd, [1990] 1 SCR 627, 1990 CanLII 137 (SCC)
  13. R v Wills, 1992 CanLII 2780 (ON CA) at p. 353
    adopted in R v Borden, 1994 CanLII 63 (SCC), [1994] 3 SCR 145, at p. 162

Standing

See also: Charter Applications and Voir Dire

Only an accused person with a reasonable expectation of privacy over a thing seized or a place searched may enforce their rights under s. 8.[1] Simply being the target of an investigation does not qualify you as having standing to challenge the search and seizure, absent a reasonable expectation of privacy.[2]

Where the accused abandons an item that is subject of a search and seizure, such as during a pursuit, there will be no expectation of privacy where in the "totality of circumstances" the accused intended to abandon the item irrevocably.[3]

Denial of Ownership or Identity
Where the accused denies ownership, knowledge or control of the item at issue of the search, the accused may not enforce a Charter right.[4] This will generally apply as well where the accused denies that it is his voice on a wiretap.[5]

  1. R v Edwards, at para 34
    R v Rahey, [1987] 1 SCR 588, 1987 CanLII 52 (SCC), at p. 619
    R v Simpson, 2015 SCC 40 (CanLII)
  2. R v Pugliese, [1992] OJ 450 (ONCA), 1992 CanLII 2781 (ON CA) per Findlayson JA
  3. R v Nesbeth, 2008 ONCA 579 (CanLII) leave denied
  4. R v LB, 2007 ONCA 596 (CanLII) at para 71 ("[h]aving disclaimed any privacy interest in the [thing], the respondent effectively precluded himself from relying on s. 8 of the Charter")
    c.f. R v McGean, 2016 ONSC 3541 (CanLII) at paras 34 - 43 - suggests standing even despite denial
  5. McGean, ibid. at paras 34 to 43

Validity of a 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.[1]

The third element constrains the actions undertaken by the officer during the search. For example, whether they are required to stop after a certain amount of time or after recovering a certain amount of evidence.

There is effectively a presumption of unreasonableness for all searches and seizures that are warrantless in criminal or quasi-criminal matters.[2]

  1. R v S.A.B., 2003 SCC 60 (CanLII)
    R v Nolet 2010 SCC 24 (CanLII) at para 21
    R v Collins, 1987 CanLII 84 (SCC)
  2. Hunter v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145 per Dickson C.J. ("“where it is feasible to obtain prior [judicial] authorization, I would hold that such authorization is a precondition for a valid search and seizure")

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.

Authorized by Law

Authorization to intrude on zone of privacy can arise out of the common law or statute. Depending on the circumstances certain zones will requires judicial authorization by way of a warrant.

Valid Law

See Constitutional Challenges to Legislation

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.

Agents of the State

See also: Charter Applications#State Agents

A person is an agent of the police where there is a relationship between the parties for a specific purpose and that the purpose would not have been undertaken but for the involvement of the police.[1] Mere cooperation between the parties is not enough.[2]

The absence of evidence of an agreement or instructions to the searching party will weigh against the finding of agency.[3]

An employee of a private company will become an agent of the state when they are directed to perform a task by the police.[4] However, where the actions of the employee, company, or person, were strictly voluntary then they are not agents of the state.[5]

A police informer wearing a wire is an agent of the state.[6]

An important question to ask is whether the conduct resulting in the discovery of evidence would have taken place in "the form and manner in which it did, but for the intervention of the state and its agents".[7]

Employees of government agencies, such as social workers, who discover or investigate possible offences are agents of the state.[8] 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.[9]

An Internet Service Provider forwarding information on the discovery of child pornography is acting as an agent of the state.[10]

A sheriff's officers executing an eviction order that was valid on its face were state actors for the purpose of s. 8.[11]

Landlords
A landlord entering into an apartment in response to a compliant and then reports the findings to police is not acting as an agent.[12]

Schools
It is usually the case that principals have statutory duties under the provincial education acts to "maintain a safe school environment".[13] This power will necessarily include the "power to seize and search a school-board-issued laptop if the principal believed on reasonable grounds that the hard drive contained compromising photographs of a student".[14]

Hospital Staff
A member of the hospital staff in execution of their duties are not agents of the state. Blood samples taken for medical reasons is not a violation of s. 8 as they are not acting as agents.[15] The applicant must prove that the medical staff was otherwise acting as an agent before an intrusion on privacy can be found.[16]

Security Personnel
A security guard screening people at the entrance of an exhibition is not a state actor even when performing duties in the presence of a peace officer.[17]

  1. R v M(MR), 1998 CanLII 770 (SCC), [1998] 3 SCR 393 at para 29 ("...it must be determined whether the search of the appellant would have taken place, in the form and in the manner in which it did, but for the involvement of the police.") - this is the same test as applies to voluntariness
    R v Broyles, 1991 CanLII 15 (SCC), [1991] 3 SCR 595, per Iacobucci J, at p. 608 ("The test for determining whether an informer is a state agent for the purposes of the right to silence is a simple one: would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?")
    R v Buhay, 2003 SCC 30 (CanLII) ("Based on the test set out in Broyles, supra, and M. (M.R.), supra, the proper question is whether the security guards would have searched the contents of locker 135 but for the intervention of the police.")
  2. M. (M.R.)
  3. M(MR), supra - vice-principal search of student's locker
  4. R v Liang, 2007 YKTC 18 (CanLII) at para 241
    R v Dorfer, 1996 CanLII 10214 (BC CA) at para 39
    R v Weir, 2001 ABCA 181 (CanLII) at para 9 - officer asks ISP employee to forward a copy of a message
  5. R v Gomboc 2010 SCC 55 (CanLII), [2010] 3 SCR 211
    c.f. R v Poh, 2011 MBQB 214 (CanLII)
  6. R v Broyles, 1991 CanLII 15 (SCC), [1991] 3 SCR 595
  7. R v Fatima, [2006] O.J. No. 3634 (O.S.C.), 2006 CanLII 63701 (ON SC), per Watt J at para 181
    R v Roberts, 2016 ONSC 2390 (CanLII) at para 47
  8. R v Choy, 2008 ABQB 737 (CanLII) at para 28 - social worker discovering bruising
    R v Westrageer et al, 2005 BCSC 1558 (CanLII) at para 43: social working investigating child welfare complaint
    R v Chang, 2003 ABCA 293 (CanLII): private security guard seizing property for police c.f. R v Allen, 2010 CanLII 73011 (NL PC)
  9. R v Lerke, 1986 ABCA 15 (CanLII)
  10. R v Weir, 2001 ABCA 181 (CanLII) at para 11
  11. R v Stevens, 2011 ONCA 504 (CanLII), at para 54
  12. R v Drakes, 2009 ONCA 560 (CanLII)
  13. R v Cole, 2012 SCC 53 (CanLII) at para 62
    R v M(MR), supra at para 51 per Cory J ("...There is no specific authorization to search provided in the Education Act, R.S.N.S. 1989, or its regulations. Nonetheless, the responsibility placed upon teachers, and principals to maintain proper order and discipline in the school and to attend to the health and comfort of students by necessary implication authorizes searches of students. ...Teachers must be able to search students if they are to fulfil the statutory duties imposed upon them. It is reasonable, if not essential to provide teachers and principals with this authorization to search. ...")
  14. Cole, ibid. at para 62
  15. R v McDougall, 2013 SKQB 358 (CanLII), at para 88
    see also Section 487 Search Warrants
  16. R v Decap, 2003 SKQB 301 (CanLII), at para 18
  17. R v Jacobs, 2014 ABCA 172 (CanLII)

Manner of Search

See also: Manner of Search and Execution of Search Warrants

See Also

Reasonable Expectation of Privacy

General Principles

See also: Rights Against Search and Seizure

A search can only be unreasonable and be in violation of s. 8 of the Charter where it intrudes on a person's reasonable expectation of privacy.[1]

An "expectation of privacy is a normative rather than a descriptive standard"[2] It is concerned "with the degree of privacy needed to maintain a free and open society, not necessarily the degree of privacy expected by the individual or respected by the state in a given situation…"[3]

The standard is "factually-driven" and "laden with value judgments" from the "independent perspective of the reasonable and informed person" concerned "with the long-term consequences of government action for the protection of privacy".[4]

What is the subject of a REP "can vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion".[5]

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."[6]

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."[7]

Courts interpret privacy in a "broad and liberal manner". [8]

Section 8 protects persons not places.[9] The Charter does not recognize regions of immunity.[10] 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.[11]

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.[12]

The key question in the context of police surveillance is whether "unauthorized surveillance ... would see the amount of privacy and freedom remaining to citizens diminished to a compass inconsistent with the aims of a free and open society."[13] The accused must begin by establishing the existence of a s.8 right by showing there is was a reasonable expectation of privacy.

What constitutes reasonableness is a “function of both the importance of the state objective and the degree of impact on the individual’s privacy interest”.[14]

  1. Hunter v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145, per Dickson J at pp. 159 to 160 - first acceptance of REP by SCC
    see R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128, per Cory J, at paras 33 and 39
    R v Evans, 1996 CanLII 248 (SCC), [1996] 1 SCR 8, per Sopinka J, at para 11
    R v Pugliese, 1992 CanLII 2781 (ON CA), per Finlayson JA - referred to as the "true test" of rights under s. 8
  2. R v Tessling, 2004 SCC 67 (CanLII), per Binnie J at para 42
    R v Patrick, 2009 SCC 17 (CanLII), per Binnie J at para 14
  3. R v Ward 2012 ONCA 660 (CanLII), per Doherty JA at para 86
  4. R v Spencer, 2014 SCC 43 (CanLII), per Cromwell J at para 18
  5. Patrick, supra para 38
  6. Patrick, supra at para 14
  7. R v Plant, 1993 CanLII 70 (SCC), [1993] 3 SCR 281, per Sopinka J
  8. R v Dyment, 1988 CanLII 10 (SCC), [1988] 2 SCR 417, per La Forest J and Lamer J
  9. Hunter v Southam Inc., at pp. 158-9 [SCR]
  10. Hunter v Southam Inc., supra at pp. 158-9
  11. e.g. R v Buhay, [2003] 1 SCR 631, 2003 SCC 30 (CanLII), per Arbour J: owner of locker allowed in locker but not police
    maid in a hotel can come into the room but not the police
    bank clerk has a master key to safety deposit box
  12. R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432, per Binnie J at para 40
    R v Boersma, 1994 CanLII 99 (SCC), [1994] 2 SCR 488, per Iacobucci J
    R v Stillman, 1997 CanLII 384 (SCC), [1997] 1 SCR 607, per Cory J
    Evans, supra, at para 50 (dissent)
    Baron v Canada, 1993 CanLII 154 (SCC), [1993] 1 SCR 416, per Sopinka J, at p. 453
    R v Dyment at p. 435 (cited to SCR)
    R v Monney, 1999 CanLII 678 (SCC), [1999] 1 SCR 652, per Iacobucci J, at para 45
  13. R v Wong, 1990 CanLII 56 (SCC), [1990] 3 SCR 36, per La Forest J
  14. R v Rodgers, 2006 SCC 15 (CanLII), per Charron J at para 27
    AM, supra at para 36 to 37

Zones of Protection

The Charter right protects a person's reasonable expectation of privacy. This is a protection of persons not places.[1]

The right manifests itself in protecting the zones of the person, territory, and information.[2] These zones will occasionally overlap and strict distinctions do not need to be made.[3]

  1. See Katz v US, 389 US 347 (1967) at p. 351
  2. R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432, per Binnie J at paras 20 to 23
    R v Gomboc, 2010 SCC 55 (CanLII), [2010] 3 SCR 211, per Deschamps J at para 19
  3. R v Patrick, 2009 SCC 17 (CanLII), per Binnie J at para 42

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."[1] It is for that reason that it is considered the strongest of the forms of privacy.[2]

Unauthorized interference with bodily integrity is an "affront to human dignity".[3]

Section 8 is implicated by searches affecting "dignity, integrity and autonomy".[4]

This form of privacy is most often considered in a strip search[5] or a warrantless seizure of a bodily sample.[6]

As a result of the high degree of intrusion of strip searches, they have the added requirement of a reasonable belief that it was necessary.[7]

  1. R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432, per Binnie J at para 21
  2. Tessling at para 21
  3. R v Stillman, [1997] 1 SCR 607, 1997 CanLII 384 (SCC), per Cory J at para 42
  4. R v Plant 1993 CanLII 70 (SCC), (1993), 84 CCC (3d) 203 (S.C.C.), per Sopinka J at para 17
  5. e.g. R v Golden, 2001 SCC 83 (CanLII), [2001] 3 SCR 679, per Iacobucci and Arbour JJ
  6. e.g. R v Stillman, 1997 CanLII 384 (SCC), [1997] 1 SCR 607, per Cory J
    R v Colarusso, 1994 CanLII 134 (SCC), [1994] 1 SCR 20, per La Forest J
  7. Golden, supra at para 104
    see also Manner of Search#Strip Searches

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".[1] This has since been adopted into the common law of Canada and the Canadian Charter of Rights and Freedoms.[2]

The use of the concept of territoriality of certain privacy rights does not contradict the notion that privacy protect people and not places because territoriality is simply an "analytical tool to evaluate the reasonableness of a person's expectation of privacy".[3]

The expectation of territorial privacy has been divided into a "hierarchy" with the home being at the top due to it being the place where "our most intimate and private activities are most likely to take place".[4] Lesser places include, in descending order, of "perimeter space around the home", "commercial space", "private cars", schools, and prison.[5]


  1. Semayne's Case at para 1
  2. Adopted in common law in Eccles v Bourque et al., 1974 CanLII 191 (SCC), [1975] 2 SCR 739, per Dickson J
    Adopted as applicable to Charter in Colet v The Queen, 1981 CanLII 11 (SCC), [1981] 1 SCR 2, per Ritchie J
  3. R v Tessling, 2004 SCC 67 (CanLII), per Binnie J at para 22
  4. Tessling, ibid. at para 22
  5. Tessling, ibid. at para 22

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."[1] It permits "individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others".[2]

Privacy as Anonymity
Informational privacy includes the concept of "secrecy and confidentiality", "privacy as control", and "privacy as anonymity". [3]

  1. R v Plant, 1993 CanLII 70 (SCC), [1993] 3 SCR 281, per Sopinka J
  2. R v Gomboc, 2010 SCC 55 (CanLII), [2010] 3 SCR 211, per Deschamps J at para 19
  3. R v Spencer, 2014 SCC 43 (CanLII), per Cromwell J at para 38

"Totality of Circumstances" Test

The "totality of the circumstances" test determines the existence of a reasonable expectation of privacy.[1]

The expectation will "vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion".[2] The test "needs to be tailored to the circumstances of the ...case."[3] In practice, the factual circumstances engaging s. 8 will vary greatly.[4]

A REP is a function of the nature of the information sought and the purpose for which it is made available.[5]

Analysis requires "value judgements" from the "perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy."[6]

Presumptive Expectations
It is presumed, "unless the contrary is shown", that the information that exists in the home is regarded as private.[7]

  1. R v Buhay, 2003 SCC 30 (CanLII), [2003] 1 SCR 631, per Arbour J at para 18
    See also R v Cole 2012 SCC 53 (CanLII), per Fish J at para 39
    R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128, per Cory J at para 31
  2. R v Patrick, 2009 SCC 17 (CanLII), [2009] 1 SCR 579, per Binnie J at para 38, citing R v Colarusso, 1994 CanLII 134 (SCC), [1994] 1 SCR 20, per Lamer CJ and Cory, McLachlin and Major JJ, at p. 53 and Buhay, supra at paras 22, 23 and 24
  3. R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432, per Binnie J at para 31
  4. R v Finley, 2013 SKCA 47 (CanLII), per Jackson JA at para 32: facts engaging s.8 will vary greatly.
  5. R v Finley at para 32
    see also Tessling, supra, and R v Gomboc, 2010 SCC 55 (CanLII), [2010] 3 SCR 211, per Deschamps J
  6. Patrick, supra at para 14
    Gomboc, ibid. para 34 ("appropriate question is whether the information is the sort that society accepts should remain out of the state’s hands")
  7. R v Patrick, supra at para 19

Subjective and Objective Components

When assessing the circumstances there should be a subjective expectation of privacy and an objective reasonableness of the expectation and does not require the testimony of the accused.[1] The objective component considers whether one ought to expect privacy and if so to what level.[2]

The accused must not have conducted himself in "a manner that was inconsistent with the continued (and customary) expectation of privacy that an independent and informed observer would reasonably expect".[3]

Subjective Component
The subjective component asks whether the accused had or is presumed to have an expectation of privacy in the zone.[4] It is not considered a "high hurdle".[5] It is often presumed to exist in certain contexts such the contents of residences and computers, or the contents of a conversation.[6]

Objective Component
The objective component considers whether the subjective expectation is reasonable and whether an "independent and informed observer, viewing the matter objectively would consider reasonable."[7]

Reasonableness will vary depending on whether it is in a criminal or regulatory context.[8]

The place of search is considered an "analytical tool" that is used to assess whether the expectation is reasonable.[9]

Factors to consider reasonableness are listed below.[10]

External heat patterns of a residence, detectable by FLIR technology, does not satisfy the reasonableness component of privacy.[11]

  1. R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128, per Cory J at para 45, citing United States v Gomez, 16 F.3d 254 (8th Cir. 1994) at p. 256
  2. R v Trapp, 2011 SKCA 143 (CanLII), [2012] 4 W.W.R. 648, per Cameron JA R v Finley, 2013 SKCA 47 (CanLII), per Jackson JA at para 32
  3. Patrick, supra at para 16
  4. R v Patrick, 2009 SCC 17 (CanLII), [2009] 1 SCR 579, per Binnie J at para 37
  5. Patrick, ibid. at para 17
    R v Jones, 2017 SCC 60 (CanLII), per Cote J, at para 20
    R v Marakah, 2017 SCC 59 (CanLII), per McLachlin CJ, at para 22

  6. e.g. see R v Gomboc, [2010] 3 SCR 211, 2010 SCC 55 (CanLII), per Deschamps J at para 25 - home
    Tessling at para 42
    R v Morelli, [2010] 1 SCR 253, 2010 SCC 8 (CanLII), per Fish J at para 2 - computers
    R v Cole, [2012] 3 SCR 34, 2012 SCC 53 (CanLII), per Fish J, at para 1 - computers
    R v Lam, 2004 ABQB 289 (CanLII), (2004), 355 A.R. 355, per Burrows J at para 30 ("An accused has standing to challenge only those intercepted communications in which he had a reasonable expectation of privacy. Prima facie this will include those intercepted communications to which he was a party, though circumstances in which an expectation of privacy would not exist in those calls may exist")
  7. Patrick, supra at paras 20, 37
  8. British Columbia Securities Commission v Branch, 1995 CanLII 142 (SCC), [1995] 2 SCR 3, per Sopkina and Iacobucci JJ at para 52
  9. Tessling, supra at para 22
  10. see below reference to Tessling, supra at paras 32 and 43
  11. see Tessling, supra at para 63

Factors

Factors considered in assessing the "totality of the circumstances" includes (Edwards factors):[1]

  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; 
  6. the existence of a subjective expectation of privacy; and 
  7. the objective reasonableness of the expectation. 

The "totality of circumstances" has later been described as inquiring:[2]

  • what is the subject matter of the search?
  • did the accused have direct interest in the subject matter?
  • did the accused have a subjective expectation of privacy?
  • if so, was the expectation objectively reasonable?

Considerations for "Informational Privacy" Only
When in the context of "informational privacy", the Edwards criteria were amended to include other considerations and factors:[3]

  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 accused’s lifestyle, or information of a biographic nature.
  1. Edwards, supra at para 45
    R v Felger, 2014 BCCA 34 (CanLII), per Garson JA
  2. Tessling, supra at para 31,32
  3. R v Tessling and R v Patrick at para 27, per Binnie

Subject Matter of the Protection

It is necessary before analyzing the privacy right, to determine the subject matter of the search. The characterization of the subject matter will have a "major contribution to a different result."[1]

The defining of the subject matter of privacy must be "defined functionally, not in terms of physical acts, physical space, or modalities of transmission".[2] The Court must inquire "what the police were really after".[3]

Section 8 protects persons not places.[4]

Illegal Objects
The fact that the target of the search is illegal does not render the expectation of privacy eliminated. [5] The nature of privacy interests do not vary on whether they are masking legal or illegal activities.[6]

Nature of the Information at issue
The analysis should not focus the "actual contents" of the information that is being considered for protection. It should be treated as an "opaque and sealed bag of information".[7] The main question is whether the information "tends to reveal intimate details of the lifestyle and personal choices of the individual".[8]

  1. R v Patrick, 2009 SCC 17 (CanLII), per Binnie J, at para 29 - discussing the characterization of the privacy interest regarding detectable odours from a suitcase
  2. R v Marakah, 2017 SCC 59 (CanLII), per McLachlin CJ at para 15
  3. Marakah, ibid. at para 15
  4. Hunter v Southham
  5. Patrick, supra at paras 32 to 34
  6. R v Spencer, 2014 SCC 43 (CanLII), per Cromwell J at para 36
  7. R v Marakah, 2017 SCC 59 (CanLII), per McLachlin CJ at para 32
    Patrick, supra at para 32
  8. Plant at p. 293
    Marakah, supra at para 32

Control

When concerning "electronic communications" the factor of control is one amongst many factors and is not determinative.[1]

  1. R v Marakah, 2017 SCC 59 (CanLII), per McLachlin CJ
    R v Pelucco, 2015 BCCA 370 (CanLII), per Groberman JA (2:1)
    R v Bennett, 2016 BCCA 154 (CanLII), per Bennett JA

Other Circumstances Considered

Contracts of Adhesion
The mere signing of a contract setting out terms of use of a service and the circumstances disclosure does not necessarily eliminate privacy rights.[1]

Terms of use policies will only be a factor in the analysis.[2]

Public Spaces
Privacy cannot be protected where it can only be preserved by whispering.[3]

  1. e.g. see R v Gomboc, 2010 SCC 55 (CanLII), per Deschamps J - divided court on whether REP in electricity use
    R v Ward, 2012 ONCA 660 (CanLII), per Doherty JA
    R v Spencer, 2014 SCC 43 (CanLII), per Cromwell J
  2. See R v Cole, 2012 SCC 53 (CanLII), per Fish J
  3. R v Playford (1987), 1987 CanLII 125 (ON CA), 63 O.R. (2d) 289 (C.A.), per Goodman JA, at para. 47,

Established Areas of Privacy

See Also

Established Areas of Privacy

Introduction

See also: Reasonable Expectation of Privacy

Courts have set out specific rules and principles when dealing with certain situations where privacy interests have been found. Those circumstances include searches of persons, residences, vehicles, storage, and more recently electronic devices.

A person can have a reasonable expectation of privacy "related to contraband".[1]

  1. R v M.(A.), 2008 SCC 19 (CanLII), [2008] S.C.J. No. 19, per LeBel J para 73
    R v Butters, 2014 ONCJ 228 (CanLII), per Paciocco J, at para 26

Person

Bags, Pockets, Purses
Bags and pockets are protected.[1]

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. [2]

Bodily Samples
DNA samples taken as part of a previous sentence is not protected by a reasonable expectation of privacy.[3]

Fingerprints
Fingerprints taken as part of a previous sentence is not protected by a reasonable expectation of privacy.[4]

Photographs
Photographs taken as part of a previous sentence is not protected by a reasonable expectation of privacy.[5]

Body Cavity
Strip searches can be humiliating, embarrassing, and degrading for the accused.[6] It is also one of the most extreme forms of search available to police.[7]

Inmates
A person convicted of a crime has a reduced expectation of privacy.[8] Accordingly, an inmate should have less expectation of privacy in their personal zone of privacy.[9]

Sound of Voice
There is no reasonable expectation of privacy in the "sound" of one's voice. [10]

Licences and registration
There is no intrusion on REP where a person is required to present documents proving compliance with a legal requirement in order to have a right of privilege.[11]

  1. R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J
  2. R v Pickton, 2006 BCSC 1098 (CanLII), per Williams J at para 38 citing R v Calarusso, 1994 CanLII 134 (SCC), per Lamer C.J. and Cory, McLachlin and Major JJ at para 70
  3. R v DeJesus, 2010 ONCA 581 (CanLII), per curiam
  4. R v Jackpine (Rodgers), 2006 SCC 15 (CanLII), [2006] 1 SCR 554, (2006), 207 CCC (3d) 225 (S.C.C.), per Charron J at para 43 - anything taken under the Identification of Criminals Act has no REP
  5. Jackpine (Rodgers), ibid. at para 43 - anything taken under the Identification of Criminals Act has no REP
  6. R v Golden 2001 SCC 83 (CanLII), per Charron J at para 89
  7. R v Flintoff, 1998 CanLII 632 at para 24
  8. R v Briggs, 2001 CanLII 24113 (ON CA), per Weiler JA at paras 33 to 35
  9. Briggs, ibid.
  10. R v Pelland, 1997 CanLII 502 (ON CA), (1997), 99 O.A.C. 62, 34 W.C.B. (2d) 356 (Ont. C.A.), per curiam - police surreptitiously record the accused voice in a public place
    R v Adam et al, 2006 BCSC 1430 (CanLII), per Romilly J at paras 9 to 11 - use of voice may still violate s. 13 for incrimination.
  11. R v Hufsky, [1988] 1 SCR 621, 1988 CanLII 72, per Le Dain J

Vehicles

A driver has a reasonable expectation of privacy for the contents of his motor vehicle.[1] The reasonable expectation of privacy for a vehicle is low or reduced.[2] It is considered more limited than locations such as houses.[3] This applies even on any public roadway.[4]

Police, however, are entitled to perform a visual examination of the interior of a vehicle, including with the use of a flashlight, for safety purposes incidental to a lawful vehicle stop.[5]

Passengers, however, do not generally have a reasonable expectation of privacy.[6] 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.[7]

  1. R v Belnavis 1996 CanLII 4007, 107 CCC (3d) 195 (Ont. C.A.), per Doherty JA; appeal dismissed 1997 CanLII 320, [1997] 3 SCR 341, per Cory J at 19
  2. R v Alkins, 2007 ONCA 264 (CanLII), [2007] O.J. No. 1348 (Ont. C.A.), per Doherty JA
    R v Shankar, 2007 ONCA 280 (CanLII), [2007] O.J. No. 1406 (Ont. C.A.), per Gillese JA
    R v Rebelo, 2007 ONCA 289 (CanLII), [2007] O.J. No. 1468 (Ont. C.A.), per curiam
    R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, per Lamer CJ, at para 15
    R v Nicolosi (1998), 1998 CanLII 2006 (ON CA), per Doherty JA at para 9
    R v Harflett, 2016 ONCA 248 (CanLII), per Lauwers JA, at para 47
  3. R v Wise, 1992 CanLII 125, [1992] 1 SCR 527, per Cory J at para 6 ("although there remains an expectation of privacy in automobile travel, it is markedly decreased relative to the expectation of privacy in one's home or office.")
    R v Belnavis, 1997 CanLII 320, [1997] 3 SCR 341, per Cory J
    R v Higgins, 1996 CanLII 5774 (QC CA), (1996) 111 CCC (3d) 206 (QCCA), per Otis JA at p.212 (houses or
  4. Higgins, ibid.
  5. e.g. R v Bonilla-Perez, 2014 ONSC 2031 (CanLII), per Code J, at para 37
  6. See Standing
  7. R v Belnavis at p. 22
    R v Madore & Madeira, 2012 BCCA 160 (CanLII), per Finch CJ at para 55

Buildings

Residences

There is a high expectation of privacy in a house. Unlawful entry will be a serious intrusion on the person's privacy rights.[1] It is recognized that "our most intimate and private activities are most likely to take place" in the residence.[2]

A police's authority to investigate at a residence without a warrant, barring the established exceptions, "ends at the door".[3]

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".[4]

A search of a dwelling is considered an invasion of a place with the "highest degree of privacy", especially when the intrusion is at night.[5]

However, the privacy in a residence does not "cloak the home in an impenetrable veil of privacy".[6]

The fact that illegal activities are being carried out within the residence doe not reduce the level of privacy.[7]

A person will have a diminished expectation of privacy where legislation authorizes police intrusion.[8]

Police intrusion upon private property can only be permitted "only by powers granted in clear statutory language"[9]

A non-resident to a residence may have an expectation of privacy, although diminished, where evidence shows that they had personal property that was kept there. [10] However, it can vary depending on the application do the Edwards factors.[11]

A residence that is "solely for the commercial trade in drugs" has a "diminished privacy interest".[12]

Apartment Buildings
There is a diminished, if any, privacy in the hallway of an apartment building.[13]

Filming the hallway of an apartment, whether or not the interior of the apartments are visible, without a warrant, will generally require a warrant.[14]

Temporary Dwellings
A rented hotel suite has an expectation of privacy while the suspect is renting it.[15]Objects outside of plain view of the cleaner can be expected to be private despite the presence of cleaning staff.[16]

Each unit of a rooming-house will be protected by the REP of the tenant for that room.[17]

A tenant of a multi-unit building has the same expectation of privacy as a single dwelling unit. A search of a multi-unit building must set out "reasonable and probable grounds for each unit to be searched".[18]

  1. see R v Silveira 1995 CanLII 89 (SCC), per Cory J at 463-4, 495-6 (the “historic inviolability of a dwelling-house”) and ("There is no place on earth where persons can have a greater expectation of privacy than within their "dwelling‑house"")
    R v Dhillon, 2010 ONCA 582 (CanLII), [2010] O.J. No. 3749 (C.A.), per Simmons JA
    R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432, 189 CCC (3d) 129, per Binnie J at 139
  2. Tessling at para 22
    R v Silveira, 1995 CanLII 89 (SCC), [1995] 2 SCR 297, per Cory J at para 140
  3. R v Landry, [1986] 1 SCR 145, 1986 CanLII 48 (SCC), per Dickson CJ at para 85 ("At present the rule is clear. Absent well recognized and widely supported exceptions, they may not enter private homes. These exceptions apart, their authority ends at the door. That rule protects them and the public from violence.") per Estey J
  4. Tessling, supra at para 144
  5. R v Sutherland 2000 CanLII 17034 (ON CA), (2000), 150 CCC (3d) 231 (Ont. C.A.), per Carthy JA at para 239 ("search of a dwelling house must be approached with the degree of responsibility appropriate to an invasion of a place where the highest degree of privacy is expected") see also para 23 citing US case of Gooding v US
  6. Gomboc, supra, at para 46
  7. Silveira, supra at para 41
  8. R v DLW, 2012 BCSC 1700 (CanLII), per Romilly J at para 38
    ("A person has a restricted objective expectation of privacy when legislation authorizes the police’s intrusion into that person’s privacy.")
  9. R v Kokesch, 1990 CanLII 55 (SCC), [1990] 3 SCR 3, 61 CCC (3d) 207, per Dickson CJ at p. 218 ("... This court consistently has held that the common law rights of the property holder to be free of police intrusion can be restricted only by powers granted in clear statutory language.")
  10. e.g. R v Jones, 2013 BCPC 149 (CanLII), per Woods J
    R v Vi, 2008 BCCA 481 (CanLII), per Finch CJ
  11. Edwards, supra - no REP in residence of accused girlfriend's home
  12. R v Nguyen, 2011 ONCA 465 (CanLII), 273 CCC (3d) 37, per Blair JA, at para 61 R v Shin, 2015 ONCA 189 (CanLII), per Gillese JA, at para 68
  13. R v Brar, 2008 MBQB 1 (CanLII), per MacInnes J at para 44
  14. R v Batac, 2018 ONSC 546 (CanLII)(link pending)
    R v Sandhu, 2018 ABQB 112 (CanLII), per Antonio J
  15. R v Mercer, 1992 CanLII 7729 (ONCA), per Arbour JA - police were let into a hotel room by the owner after a cleaner found an amount of cash and drugs in a pillow case in closet
    see also US v Domenech, 6th Circuit Court of Appeals
  16. Mercer
  17. R v Campbell, [2011] 2 SCR 549, 2011 SCC 32 (CanLII), per Charron J
  18. Campbell, ibid.

Non-dwelling Premises

Provided that there is an expectation of privacy in a non-dwelling premises, the accused's standing may invoked where he has "an ownership interest in the premises" absence countervailing evidence.[1]

Workplaces and Businesses
The search of a private office will generally require a warrant.[2]

A works place has a "relatively low expectation of privacy" in respect to the premises and documents used and produced in the course of business.[3]

A business "open to the public" has an "implied invitation" for everyone to enter. As such, it has no reasonable expectation of privacy from police.[4]

Schools
The privacy interests of a student attending a school is "significantly diminished".[5]

Students have no expectations of privacy while engaged in common activites on the school premises.[6]

Public Washrooms
A public washroom where a person in engaging in sexual activity is not necessarily protected by a REP.[7] However, in some cases a bathroom stall will be considered private.[8]

  1. e.g. R v Fankhanel, 1999 CanLII 19075 (AB QB), per Veit J
    c.f. R v Pugliese, 1992 CanLII 2781 (ON CA), (1992) 71 CCC (3d) 295 (ONCA), per Finlayson JA - no standing for owner of building who did not live in it
  2. R v Rao (1984), 1984 CanLII 2184 (ON CA), 46 O.R. (2d) 80, 10 C.R.R. 275, 12 CCC (3d) 97, per Martin JA ("I have, for the reasons which I have set forth, concluded that the search of an office without a warrant where the obtaining of a warrant is not impracticable, is unreasonable and, to that extent, s. 10(1)(a) (of the Narcotic Control Act) is of no force and effect.")
  3. Thomson Newspapers Ltd. v Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 SCR 425, 1990 CanLII 135 (SCC), per La Forest J at para 123
    R v Silveira, [1995] 2 SCR 297, 1995 CanLII 89 (SCC), per L'Heureux-Dube J in dissent, at para 117 ("I note that our Court has previously discussed, with respect to the reasonableness of searches and seizures under s. 8 of the Charter, the lower expectancy of privacy in a workplace.")
  4. R v Fitt, 1995 CanLII 4342 (NS CA), (1995) 96 CCC (3d) 341, per Hallett JJA aff'd (1996) 103 CCC (3d) 224 (SCC), [1996] 1 SCR 70, 1996 CanLII 251 (SCC), per Lamer CJ
    R v Spindloe, 2001 SKCA 58 (CanLII), per Jackson JA
  5. R v MRM, [1998] 3 SCR 393, 1998 CanLII 770 (SCC), per Cory J, at para 33
    Tessling, supra at para 22
  6. R v Jarvis, 2017 ONCA 778 (CanLII), per Feldman JA
  7. R v LeBeau, 1988 CanLII 3271 (ON CA), per curiam
  8. R v Wegner, 2017 ONSC 1791 (CanLII), per Fairburn J

Holding Cells and Prisons

Generally, a prison inmate will not usually have any expectation of privacy in a correctional facility.[1]

There is a "substantially reduced level of privacy" in a prison setting.[2] The search of a prison cell or frisk of a prisoner and other practices are not subject to any expectation of privacy.[3]

An inmate in a correctional facility has a very limited expectation of privacy over their phone calls.[4]

An accused person being held in a police cell has an expectation of privacy over his own speech, absent a sign warning that there may be recording devices present.[5]

  1. R v Lamirande 2002 MBCA 41 (CanLII), (2002) 164 CCC (3d) 299 (Man.C.A.), per Scott CJ at para 31 - no REP in documents held by inmate
  2. Weatherall v Canada (Attorney General), [1993] 2 SCR 872, 1993 CanLII 112 (SCC), per LaForest J, at p. 877 ("A substantially reduced level of privacy is present in this setting and a prisoner thus cannot hold a reasonable expectation of privacy with respect to these practices.")
    R v Major, 2004 CanLII 12791 (ON CA), (2004), 186 CCC (3d) 513, 23 C.R. (6th) 294, per Rosenberg JA, denied leave [2005] S.C.C.A. No. 106 - expectation of privacy in family visit trailer
  3. Weatherall v Canada (Attorney General), at p. 877 ("Imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to require observation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, the public and indeed the prisoners themselves.")
    R v Lamirande, 2002 MBCA 41 (CanLII), (2002), 164 CCC (3d) 299 (Man. C.A.), per Scott CJ, denied leave [2002] S.C.C.A. No. 203
  4. R v Drader, 2012 ABQB 168 (CanLII), per Macklin J
    R v McIsaac, 2005 BCSC 385 (CanLII), per Parrrett J
  5. R v Mohamud, 2010 ONSC 6264 (CanLII), per Pomerance J
    R v Simon 2013 ABQB 95 (CanLII), per Moreau J

Airports and Border Crossings

Border crossings are an exceptional case to reasonable expectation of privacy.[1]

There is a lower expectation of privacy since people accept that foreign countries have a right to control who enters their country and can screen people for illegal goods. This permits physical searches of luggage and person "where there are grounds for suspecting that a person has made false declaration and is transporting prohibited goods."[2]

  1. R v Simmons, [1988] 2 SCR 495, 1988 CanLII 12 (SCC), 45 CCC (3d) 296, per Dickson CJ ("...the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny.")
    See also R v Monney, 1999 CanLII 678 (SCC), [1999] 1 SCR 652, 133 CCC (3d) 129, per Iacobucci J
    R v Jacques, 1996 CanLII 174 (SCC), [1996] 3 SCR 312, 110 CCC (3d) 1, per Gonthier J
  2. Simmons, supra at pp. 528-29 [SCR]

Outdoor Areas

Trespasser growing marijuana in abandoned but secluded fields do not possess any REP.[1]

  1. R v Lauda, [1998] 2 SCR 683, 1998 CanLII 804 (SCC), per Cory J

Storage

Schools

School lockers have a reduced expectation of privacy due to school's authorities responsibility to provide a "safe environment and maintaining order and discipline in the school".[1]

  1. R v MRM, 1998 CanLII 770 (SCC), [1998] 3 SCR 393, per Cory J
    see also http://en.wikipedia.org/wiki/R._v._M._(M.R.)

Storage Lockers

A bus stop locker will be private despite emanations from the locker.[1]

  1. R v Buhay, [2003] 1 SCR 631, 2003 SCC 30 (CanLII), per Arbour J

Suit Cases

There is a reasonable expectation of privacy in a suit case.[1]

  1. R v Kang-Brown 2008 SCC 18 (CanLII), per LeBel J

Packages

Parcel accepted for delivery by a courier service can still have a reasonable expectation of privacy.[1] However, that objective expectation can be negated by circumstances such as search clause in the shipping contract.[2]

Where a package has been opened either unlawfully or inadvertently by a non-state agent, discovering evidence of an offence such as cocaine, there may still be a reasonable expectation of privacy requiring a warrant.[3]

  1. R v Fry 1999 CanLII 18945 (NL CA), (1999) N.J. No. 352, 142 CCC (3d) 166, per Green JA
  2. R v Godbout, 2014 BCCA 319 (CanLII), per Goepel JA - police open package without warrant
  3. R v Washington, 2007 BCCA 540 (CanLII), per Ryan JA
    c.f. R v Snow, 2005 NLTD 81 (CanLII), per Dymond J - opened package seizeable without warrant

Garbage

Garbage bags themselves contain information that "paint a fairly accurate and complete picture of the householder's activities and lifestyles".[1]

Generally speaking, materials found in a dumpster or left on the street curb for pickup are abandoned and so have no expectation of privacy.[2]

  1. R v Patrick at para 30
  2. R v Sipes, 2008 BCSC 1500 (CanLII), per Smart J and 2012 BCSC 1948 (CanLII), per Smart J
    Patrick

Business Records

Business records found in the accused's place of business will be protected.[1]

Telephone records detailing contact between various persons has a reduced expectation of privacy, in comparison to personal medical records[2]

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.[3]Generally they have sided on there not being privacy rights in "tombstone" information of a person since it is freely available to the public.[4] 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.[5]

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.[6]

Employment Records
Employment records generally are considered private and confidential, containing personal information about an individual's "employment terms and conditions, performance evaluations, salary and benefits paid or payable, seniority standing, discipline, commendations or reprimands, all of which directly impact the individual’s identity or self worth."[7]

Records Produced in Ordinary Course of Business
Those records produced during the ordinary course of business of regulated activities will have a diminished expectation of privacy.[8]

Documents Seized During a Regulatory Inspection
Documents seized during a regulatory inspection are not subject to a REP.[9]

Utility Records
Utility records specifically have been found not to hold a high degree of expectation of privacy.[10]

  1. E.g. Hunter v Southam, [1984] 2 SCR 145, 1984 CanLII 33 (SCC), per Dickson CJ
  2. R v M.(B.), 1998 CanLII 13326 (ON CA), (1998), 42 O.R. (3d) 1 (C.A.), per Rosenberg JA, at para 62
    See also, R v Hutchings 1996 CanLII 703 (BC CA), (1996), 111 CCC (3d) 215 (BCCA), per McEachern JA, at para 25
    R v Mahmood, 2011 ONCA 693 (CanLII), per Watt JA at para 98
  3. R v Graff, 2015 ABQB 415 (CanLII), per Neilsen J - No REP on IP when it doe not divulge personal information<br
  4. No REP: R v Ward, 2012 ONCA 660 (CanLII), per Doherty JA
    R v Thomas, 2013 ABQB 223 (CanLII), per Jerke J
    R v Caza, 2012 BCSC 525 (CanLII), per Powers J
    R v Friers, [2008] O.J. No. 5646 (Ct. Jus.)(*no CanLII links)
    R v Verge, [2009] O.J. No. 6300 (Ct. Jus.)(*no CanLII links)
    R v Vasic, 2009 CanLII 23884 (ON SC), per Thorburn J
    R v Wilson, [2009] O.J. No. 1067 (Sup. Ct.)(*no CanLII links)
    R v Spencer, 2009 SKQB 341 (CanLII), [2009] S.J. No. 798 (Q.B.), per Foley J appealed to 2014 SCC 43 (CanLII), per Cromwell J
    R v McNeice, 2010 BCSC 1544 (CanLII), per Meiklem J
    R v Brousseau, 2010 ONSC 6753 (CanLII), per Croll J
    R v Ballendine, 2011 BCCA 221 (CanLII), per Frankel JA
    Yes, REP:
    R v Trapp, 2011 SKCA 143 (CanLII), per Cameron JA
    R v Cuttell, 2009 ONCJ 471 (CanLII), per Pringle J
  5. e.g. in Cuttell, ibid. at para 57
  6. R v Quinn 2006 BCCA 255 (CanLII), per Thackray J - police were allowed to speak to bank to find out if accused had an account there and used that information for a search warrant.
  7. R v Musselwhite, 2004 BCPC 443 (CanLII), per Dhillon J, at para 63
  8. R v Jarvis, 2002 SCC 73 (CanLII), [2002] 3 S.C.R. 757, per Iacobucci and Major JJ, at para. 72
    e.g. Thomson Newspapers, 1990 CanLII 135 (SCC), [1990] 1 SCR 425, per La Forest J, at p. 507
  9. Thomson newspapers ltd. v Canada (Director of investigation and research, restrictive trade practices commission), [1990] 1 SCR 425, 1990 CanLII 135 (SCC), per La Forest J
  10. R v Tran, 2007 ABPC 90 (CanLII), per Van de Veen J
    R v Cheung, 2007 SKCA 51 (CanLII), per curiam

Service Providers

An account holder with an internet service provider has a expectation of privacy over the Customer Name and Address (CNA) records that are associated with an assigned IP address.[1]

There is no expectation of privacy with the CNA records associated with a telephone or cellphone number.[2]

  1. R v Spencer, 2014 SCC 43 (CanLII), per Cromwell J at para 47
  2. R v Khan, 2014 ONSC 5664 (CanLII), per Code J
    R v TELUS Communications Company, 2015 ONSC 3964 (CanLII), per Nordheimer J
    R v Lattif, 2015 ONSC 1580 (CanLII)(link pending)
    c.f. Re Subscriber Information, 2015 ABPC 178 (CanLII), per Henderson J - asks whether this applies only to non-internet accessible phones

Personal Communications

Generally, the private conversations, including private telephone calls, are protected by a REP.[1] However, there exist communications that are not protected.[2]

The court may look at the contents of the communications to determine whether there is a subjective and objective expectation of privacy.[3]

Subject matter of Intrusion
In a communication by electronic means, the subject of the intrusion is not the device but rather the "conversation".[4]

The fact that the sender of a message in an the electronic conversation knows that there is as risk that the recipient may disclose the conversation is not the same as understanding of a risk that the state may intrude on the conversation.[5]

Control
Control as a factor in analysis of REP must be considered in relation to the subject matter of the search, which is, when talking about online communications is the "electronic conversation".[6]

Control over the electronic conversation is only one factor in the analysis of expectation of privacy.[7]

Awareness of lack of privacy
Where the conversation makes many references the lack of confidence in the privacy of the conversation may be sufficient to eliminate subjective expectations of privacy.[8]

  1. R v Duarte, [1990] 1 SCR 30, 1990 CanLII 150 (SCC), per La Forest J - face-to-face conversations
    R v Shayesteh, 1996 CanLII 882 (ON CA), (1996), 31 O.R. (3d) 161 (C.A.), per Charron JA
    R v Deacon, 2008 CanLII 78109 (ON SC), [2008] O.J. No. 5756, per Trafford J
  2. e.g. see R v Moldovan, 2009 CanLII 58062 (ON SC), per R Clark J, at para 43
    Duarte, supra at para 28
  3. R v Marakah, 2017 SCC 59 (CanLII), per McLachlin CJ
    Moldovan at para 44
    R v McIsaac, 2005 BCSC 385 (CanLII), [2005] BCJ No. 946 (SC), per Parrett J at para 67 - re wiretaps on jail phone calls
    R v Bartkowski, 2004 BCSC 44 (CanLII), [2004] BCJ No. 2950 (SC), per Macaulay J - re wiretaps phone calls
  4. Marakah, supra
  5. Marakah, ibid.
  6. Marakah, ibid.
  7. Marakah, ibid.
  8. e.g. Moldovan, supra - many statements such as "Listen, man, we shouldn’t talk about it on the phone."

Social Media and Text Messages

Telephone calls by accused in custody, often where there are signs indicating that the conversation is not private, will reduce or eliminate any subjective expectation of privacy.[1]

The text messages of the accused, present on a third-party's phone, may be subject to a reasonable expectation of privacy.[2]

Protections Upon Electronic Conversations
The protection of the "electronic conversation" includes "existence of the conversation, the identities of the participants, the information shared, and any inferences about associations and activities that can be drawn from that information".[3]

  1. e.g. see R v McIsaac, 2005 BCSC 385 (CanLII), [2005] BCJ No. 946 (SC), per Parrett J
    R v Bartkowski, 2004 BCSC 44 (CanLII), [2004] BCJ No. 2950 (SC), per Macaulay J
    R v Ballantyne, 2008 BCSC 1566 (CanLII), per Chamberlist J
  2. R v Marakah, 2017 SCC 59 (CanLII), per McLachlin CJ
    R v Pelucco, 2015 BCCA 370 (CanLII), per Groberman JA
    R v Craig, 2016 BCCA 154 (CanLII), per Bennett JA
    c.f. R v Lowrey, 2016 ABPC 131 (CanLII), per Rosborough J - police access Facebook account of luring victim and seize text messages between victim and accused
  3. Marakah, supra at para 20

Electronic Devices

Data found on electronic devices are generally protected by "informational privacy". However, the analysis often makes use of the metaphors with territorial privacy.[1]

  1. e.g. R v Marakah, 2017 SCC 59 (CanLII), per McLachlin CJ at para 25 to 30

Computers

Generally
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: [1]

  • 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);

A lack of exclusive control over the control over contents of the information is not a sole basis for finding a lack of expectation of privacy.[2]

Home and Personal Computers
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.[3] According to the Morelli court, the level of privacy does not get much higher.[4]

The high expectation exists not only due to amount of intimate personal information is stored on the devices but also because of its high capacity to store data, the existence of a significant amount of information that the user is unaware of, such as metadata and tracking history, it also stores data after its deletion and may provide access to sources outside of the device.[5]

Generally, all personal electronic devices similar to home computers have a high level of privacy.[6]

It is suggested that the degree of privacy is lessened where a personal computer has been brought to a repair shop.[7] In some cases, there is no expectation of privacy.[8]

An accused loses their reasonable expectation of privacy to a household computer once they move out.[9]

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.[10]

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.[11]

It has been suggested that a search of a memory stick has a REP and so requires a search warrant.[12]

School and Workplace Computers
Workplace computers are considered to have limited expectation of privacy. [13] This will turn on the employer's privacy policy on whether the employees can keep personal things on work computers.[14]

The deleted internet browsing history of a school computer will still have a reasonable expectation of privacy. Deleted files represents an intent to keep potential private information hidden. [15]

  1. see discussion in R v Polius, 2009 CanLII 37923 (ON SC), [2009] O.J. No. 3074 (Sup. Ct.), per Trafford J
  2. R v Cole at para 54
  3. R v Morelli, 2010 SCC 8 (CanLII), per Fish J at 105
  4. Morelli, ibid. at para 2: (“It is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer.”
  5. R v Vu, 2013 SCC 60 (CanLII), per Cromwell J, at para 42, 43
  6. R v Choudry, [2009] O.J. No 84 (ONSC)(*no CanLII links)
    R v Little, 2009 CanLII 41212 (ONSC), per Fuerst J
    Polius, supra
  7. R v Graham, 2010 ONSC 119 (CanLII), [2010] O.J. No. 146 (Sup. Ct.), per Desotti J: ( Defence argued a high degree of privacy in the computer at the repair shop, the judge said "I agree that in other factual situations that a court may have to consider, those other concerns [of Defence] might have a more prominent place. I do not have those facts before me.")
    R v Winchester, 2010 ONSC 652 (CanLII), [2010] O.J. No. 281 (Sup. Ct.), per Valin J at para 36: (“while I am not prepared to find that the applicant had no expectation of privacy in the contents of the computer when he left it at the store, I do find that this expectation was significantly reduced.”)
  8. R v Piette, 2009 QCCQ 14499 (CanLII), per Bonin J 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
  9. R v Pommer (2008), 58 C.R. (6th) 319, 2008 CarswellBC 1181, 2008 BCSC 423 (CanLII), (B.C. S.C.), per D Smith J
  10. R v Stemberger, 2012 ONCJ 31 (CanLII), per Borenstein J at paras 99, 110
  11. R v Little, 2009 CanLII 41212 (ON SC), per Fuerst J
  12. R v Tuduce, 2011 ONSC 2749 (CanLII), per Taylor J at paras 41-45
  13. R v Cole, 2009 CanLII 20699 (Sup. Ct.), per Kane J rev'd 2011 ONCA 0218 aff'd 2012 SCC 53 (CanLII), per Fish J
    R v Ritter, 2006 ABPC 162 (CanLII), (2006), 402 A.R. 249 (Prov. Ct.), per Fraser J
  14. R v Cole, supra
  15. R v McNeice, 2013 BCCA 98 (CanLII), per Finch JA

Online Data and Communications

Online Information
Activities online, even when in a public internet forum under a pseudonym, will retain a degree of privacy.[1]

It seem communications with undercover police officers online would not engage a privacy protection.[2]

Facebook
An open facebook profile containing broadcast communications are not protected by a reasonable expectation of privacy.[3]

Text Messages
Depending on the "totality of circumstances", the sender of text messages that have been received by the recipient may still be able to retain privacy rights over the content of the messages.[4] This however does not mean that a sender always has an expectation of privacy, it will depend on the case-by-case analysis under Edwards.[5]

  1. R v Ward, 2012 ONCA 660 (CanLII), per Doherty JA at paras 71, 74
    R v Spencer, 2014 SCC 43 (CanLII), per Cromwell J
  2. R v Graff, 2015 ABQB 415 (CanLII), per Neilsen J
    R v Kwok, [2008] OJ No 2414(*no CanLII links)
    R v Caza, 2012 BCSC 525 (CanLII), per Powers J
    R v Ghotra, [20015] OJ No 7253 (ONSC) (*no CanLII links) , per Durno J
    R v Vader, 2016 ABQB 309 (CanLII), per Thomas J - cell phone text messages obtained from ISP by production order after they have been sent
    R v Mills, 2017 NLCA 12 (CanLII), per Welsh JA leave to appeal to SCC granted - involved active screen capture by the police officer
  3. R v Patterson, 2018 ONSC 4187 (CanLII), per Bawden J, at paras 6, 8, 21, 33
  4. R v Marakah, 2017 SCC 59 (CanLII), per McLachlin CJ at para 4 ("...depending on the totality of the circumstances, text messages that have been sent and received may in some cases be protected under s. 8 and that [the sender] had standing to argue that the text messages at issue enjoy s. 8 protection.")
  5. R v Vickerson, 2018 BCCA 39 (CanLII), per Bennett JA at para 54

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.

US 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 intention of the user.[1]

A shared directory in a peer-to-peer network has a lower expectation of privacy than a home.[2] The search of shared files on peer-to-peer network does not engage s. 8 of the Charter.[3] Equally, the text messages shared between users of the Gigatribe community are not protected either.[4]

  1. US v Ganoe, 538 F.3d 1117 (2008) ("although as a general matter an individual has an objectively reasonable expectation of privacy in his personal computer…we fail to see how this expectation can survive Ganoe’s decision to install and use file-sharing software, thereby opening his computer to anyone one else with the same freely available program.")
    State v Mahan, 2011 WL 4600044: the police internet investigation program "simply automated the ability to search information that had been placed in the public domain")
    US v Sawyer, 786 F. Supp. 2d 1352 (2011) suggested that once access is given to a “friend” the owner is giving up their right to privacy over those shareable files, simply because the police are not identifying themselves does not change things
  2. R v Caza, 2012 BCSC 525 (CanLII), per Powers J
  3. Caza, ibid. at paras 90 to 97, 113
  4. Caza, ibid.

Contents of Cell Phones

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

All cellphones, regardless of their capacity, is said to have a high expectation of privacy.[1]

There should be no distinction between cell phones and computers given the sophistication of phones.[2]

Where an accused suggests that he "found" a cell phone in his possession he cannot assert s. 8 Charter rights.[3]

The contents of a cell phone protected by s. 8, includes any information visible on the face of the locked screen after any button is pressed.[4]

  1. R v Fearon, 2014 SCC 77 (CanLII), per Cromwell J
    see also R v Sheck, 2012 BCPC 39 (CanLII), per Bahen J at para 17 (It is like "an archive of social, family and business activities")
  2. R v Vu, 2013 SCC 60 (CanLII), per Cromwell J at para 38
  3. R v Hebrada-Walters, 2013 SKCA 24 (CanLII), per Ottenbreit JA at para 35 to 38
  4. R v Millett, 2017 ABQB 9 (CanLII), per Viet J

Vehicle Data Recorders

There is some division on whether there is a warrant needed to examine the data recorders that exist within vehicles.[1]

It has been suggested that a lawful seizure of a vehicle under s. 489(2) is sufficient to extinguish any subjective expectation of privacy over the contents the vehicle including on-board data.[2]

  1. R v Hamilton, 2014 ONSC 447 (CanLII), per MacDougall J - warrant required
    R v Glenfield, 2015 ONSC 1304 (CanLII), per Hambly J - warrant required
    R v Fedan, 2016 BCCA 26 (CanLII), per D Smith J, leave to SCC dismissed - warrant not required
  2. Fedan, ibid.

Warrantless Searches

Introduction

Generally speaking, a valid search should only be done when under judicial authorization where it is feasible to get one.[1]

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.[2] The Crown then must prove the reasonableness of the search on a balance of probabilities. [3] Reasonableness of a search has both a subjective and objective component.[4]

The Police cannot enter into a private dwelling without a warrant, consent, or exigent circumstances.[5]

Police can be authorized to violate a person's right to privacy either through statute or by common law power.

  1. Hunter v Southam Inc., [1984] 2 SCR 145, 1984 CanLII 33, per Dickson J ("where it is feasible to obtain prior authorization, ... such authorization is a precondition for a valid search and seizure ... ")
  2. Hunter v Southam Inc., supra
    R v Golden, [2001] 3 SCR 679, 2001 SCC 83 (CanLII), per Iacobucci and Arbour JJ
    R v Mann, 2004 SCC 52 (CanLII), per Iacobucci J
    R v Feeney, 1997 CanLII 342 (SCC), [1997] 2 SCR 13, at para 54
  3. see R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, per Lamer CJ at para 11
  4. R v Bernshaw, 1995 CanLII 150 (SCC), per Sopinka J
  5. Feeney, supra at para 44

Categories of Searches

There are several types of warrantless searches:

  1. Search by Consent
  2. Search Incident to Investigative Detention
  3. Search Incident to Arrest
  4. Search of Abandoned Property
  5. Search in Plain View
  6. Exigent Circumstances
  7. Statutory Warrantless Search Powers

See Also

Manner of Search

General Principles

Where persons other than the accused have their privacy invaded during the search will be a factor in considering the reasonableness of the search.[1]

The manner of search must be reasonable.[2] The "manner" of search refers to the "physical way in which [the search] is carried out."[3]

  1. R v Silveira, [1995] 2 SCR 297, 1995 CanLII 89 (SCC), per La Forest J in dissent at paras 47 to 48
  2. Hunter v Southam, [1984] 2 SCR 145, 1984 CanLII 33 (SCC), per Dickson J
  3. R v Hamilton, 2014 ONSC 447 (CanLII), per MacDougall J at para 100
    R v Debot, 1986 CanLII 113 (ON CA), (1986), 30 CCC (3d) 208 (Ont. C.A.), per Martin JA, para 6

Use of Force During Search

Section 25 governs the use of force during which a police executes their duties:

Protection of persons acting under authority
25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
...

(b) as a peace officer or public officer,

...
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
Idem
(2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.
When not protected
(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.
When protected
(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if

(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;
(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;
(c) the person to be arrested takes flight to avoid arrest;
(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and
(e) the flight cannot be prevented by reasonable means in a less violent manner.


...
R.S., 1985, c. C-46, s. 25; 1994, c. 12, s. 1.


CCC

Once it is shown that force was used, the onus shifts to the Crown to establish that s. 25 was complied with.[1]

Section 25 intends to constrain police conduct "by the principles of proportionality, necessity and reasonableness".[2]

Regarding the use of force with respect to sentencing see State and Police Misconduct.

  1. R v Davis, 2013 ABCA 15 (CanLII), per curiam (2:1)
  2. Davis, ibid.

Strip Searches

Timing of Search

A search must be commenced within the time period specified by the warrant, but it need not conclude within the period specified in the warrant as long as it it completed "without unreasonable delay".[1]

  1. R v Woodall, [1993] OJ No 4001 (ONCA)(*no CanLII links)
    R v Butters, 2014 ONCJ 228 (CanLII), per Paciocco J at para 46

See Also

Warrantless Searches

Introduction

Generally speaking, a valid search should only be done when under judicial authorization where it is feasible to get one.[1]

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.[2] The Crown then must prove the reasonableness of the search on a balance of probabilities. [3] Reasonableness of a search has both a subjective and objective component.[4]

The Police cannot enter into a private dwelling without a warrant, consent, or exigent circumstances.[5]

Police can be authorized to violate a person's right to privacy either through statute or by common law power.

  1. Hunter v Southam Inc., [1984] 2 SCR 145, 1984 CanLII 33, per Dickson J ("where it is feasible to obtain prior authorization, ... such authorization is a precondition for a valid search and seizure ... ")
  2. Hunter v Southam Inc., supra
    R v Golden, [2001] 3 SCR 679, 2001 SCC 83 (CanLII), per Iacobucci and Arbour JJ
    R v Mann, 2004 SCC 52 (CanLII), per Iacobucci J
    R v Feeney, 1997 CanLII 342 (SCC), [1997] 2 SCR 13, at para 54
  3. see R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, per Lamer CJ at para 11
  4. R v Bernshaw, 1995 CanLII 150 (SCC), per Sopinka J
  5. Feeney, supra at para 44

Categories of Searches

There are several types of warrantless searches:

  1. Search by Consent
  2. Search Incident to Investigative Detention
  3. Search Incident to Arrest
  4. Search of Abandoned Property
  5. Search in Plain View
  6. Exigent Circumstances
  7. Statutory Warrantless Search Powers

See Also

Consent Search

General Principles

A search by consent is one form of warrantless search. 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.

Voluntary
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
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]

Notice of Right to Refuse
The cases are divided on whether the police need to give clear instructions on the right to refuse. [6] Courts opposed to the requirement state 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.[7]

Waiver
The Crown must establish that the accused right to be searched was waived clearly and unequivocally.[8] However, where the accused is given access to counsel there is a presumption of informed consent unless the accused shows otherwise.[9]

Effect of Consent
Once consent is given there is no future expectation of privacy.[10]

invalidating consent
A threat to get a warrant when the officer knows there is no grounds to do so can invalidate consent to search.[11] However, it is not necessary the police ever let the accused know that there is no grounds to search the item for which consent is sought.[12]

Coercion
Coercion will exist where there are threats made should the accused refuse to give consent.[13]

Honest But Mistaken Belief in Consent
Police are not permitted to justify a warrantless search on the basis that they had a mistaken belief in consent.[14]

Burden
The burden is upon the Crown to prove consent on a balance of probabilities.[15]

  1. R v Chang, 2003 ABCA 293 (CanLII) at para 28
  2. R v Wills, 1992 CanLII 2780 (ON CA), (1992), 70 CCC (3d) 529 at 69
    R v Cooper, 2011 ABQB 17 (CanLII) at paras 35-41
    R v Borden 1994 CanLII 63, [1994] 3 SCR 145
    R v Rutten, 2006 SKCA 17 (CanLII) at para 35
  3. R v Bergauer-Free 2009 ONCA 610 (CanLII) at para 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 (CanLII) at paras 48, 52
    c.f. R v Lupien, 1995 CanLII 5211 (QC CA), (1995) 68 QAC 253 (CA)
    R v Blackstock, 1997 CanLII 14495 (ON CA), (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 SCR 145
  6. R v Rutten 2006 SKCA 17 (CanLII) at paras 39 to 44, the court stated that permission to enter to search a dwelling must include information on the person's right to refuse
  7. R v Lewis (1998) 122 CCC 3d 481 (ONCA), 1998 CanLII 7116 (ON CA)
  8. R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265
  9. R v Williams, 1992 CanLII 295 (BC SC), (1992) 76 CCC 385 (BCSC)
    R v Deprez (1994) 95 CCC 29 (MBCA), 1994 CanLII 16612 (MB CA), per Scott CJM
  10. R v Arp [1998] 3 SCR 339, 1998 CanLII 769 (SCC) at 90
  11. R v O’Connor, 2002 CanLII 3540 (ON CA) at paras 74, 75
  12. Connor at para 75
  13. R v Bergauer-Free, 2009 ONCA 610 (CanLII) - police threaten to bring in canine unit should consent be refused. This was found to be "colorably lawful coercion"
  14. Wills, supra (“where the Crown relies on the consent of an individual as authorization for a seizure and fails to establish the validity of that consent, then the seizure cannot be brought within s. 8 based upon the police officer’s perception of the validity of the consent”)
    R v Reeves, 2017 ONCA 365 (CanLII) at para 71
  15. Wills, supra at p. 353
    R v Colson, 2008 ONCA 21 (CanLII), 88 O.R. (3d) 752, at para 23 leave denied [2008] S.C.C.A. No. 101
    Simon, 2008 ONCA 578 (CanLII) at para 49
    Rutten, supra at para 36

Consent to Enter Residence to Arrest

Consent entry for the purpose of arrest is an exception to the rule from R v Feeney, 1997 CanLII 342 (SCC) requiring a "Feeney warrant" to enter a residence for arrest.[1]

When executing a warrant, police may enter a premises by consent where there exists:[2]

  1. it must be given by someone who has a privacy interest in the premises
  2. the consent must be an informed one
  1. Tymkin v Ewatski et al., 2014 MBCA 4 (CanLII)
  2. R v R.M.J.T., 2014 MBCA 36 (CanLII), at para 46
    Tymkin v Ewatski at para 89

Consent to Enter Residence to Search

Consent to search a residence is guided by the "reasonable expectation of privacy".[1] A person who does not possess an expectation of privacy may not consent to a search.[2]

The relationship between the consenter and the suspect is not determinative.[3]

A parent can consent to a search of a child's portion of a residence as long as there were no restrictions on the parent's access to the zone of privacy.[4]

  1. R v RMJT, 2014 MBCA 36 (CanLII), at para 48
  2. RMJT, ibid. at para 48
  3. RMJT, ibid. at para 48
  4. RMJT, ibid. at para 48

Implied Licence

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” [1] The licence "ends at the door of the dwelling."[2] Privacy rights are waived unless there is a clear expression of intent rebutting this.[3]

This consent extends only insofar as it permits a person to conveniently communicate with the occupant and the activities reasonably associated with this purpose.[4] It does not extent to police approaching and knocking at the door for the purpose of collecting evidence against the occupant.[5]

Entering on a person's driveway, where in plainview of the public will be included in the licence.[6] But this was found impermissible for an attached garage.[7]

A business open to the public will also provide a similar licence for police to enter.[8]

Consent to enter a home does not include a blanket right to search the whole house including the basement.[9]

What constitutes implied licence "must be analyzed in [its] context".[10]

When "an invitee’s purpose changes from lawful to unlawful while on the premises, they become a trespasser.”[11]

  1. R v Evans, [1996] 1 SCR 8, 1996 CanLII 248 at para 13 , citing R v Tricker 1995 CanLII 1268 (ON CA), (1995), 21 O.R. (3d) 575, at p. 579
    See also Plain View Search and Seizure
  2. Tricker at para 12
  3. Evans at 13
  4. R v Evans at para 15
  5. R v Evans at para 16, 18, 20, 21
  6. R v Lotozky, 2006 CanLII 21041 (ON CA), (2006), 210 CCC (3d) 509 - police observed impaired driver exiting his car in the driveway
  7. R v Noerenberg, 1997 CanLII 12354 (ON SC), [1997] O.J. No. 4628 (Ont. Gen. Div.)
    R v Maciel, 2003 CanLII 32396 (ON CA), (2003), 33 M.V.R. (4th) 152 - attached garage different from driveway
    R v Clements, 2007 ABPC 220 (CanLII), [2007] A.J. No. 1024 (ABPC)
    See also R v Belnavis, [1997] 3 SCR 341, 1997 CanLII 320 (SCC) - stating attached garage including in privacy of home
  8. R v Fitt, 1995 CanLII 4342 (NS CA) aff'd [1996] 1 SCR 70, 1996 CanLII 251 (SCC)
    R v Spindloe, 2001 SKCA 58 (CanLII)
  9. R v Smith, 1998 ABCA 418 (CanLII), (1998), 128 CCC (3d) 62 (ABCA)
  10. R v Evans
  11. R v Nobile (2006), 75 W.C.B. (2d) 581 (Ont. S.C.)(*no CanLII links) , at para 53

Authority to Consent and Third Party Consent

A third party cannot consent or waive a suspect's rights under s. 8 of the Charter.[1]

The main question is whether the suspect "would not reasonably expect another person to be able to authorize a search" in which case that other person cannot consent.[2]

Third party consent is not to be considered as a form of Charter waiver of the suspect, but rather informs the analysis of whether there was an intrusion on the reasonable expectations of the suspect.[3]

Third party consent by a wife or parent requires that the police also have diffident grounds to get a search warrant at the time.[4]

Mistaken Belief in Authority
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 police wrongly relied upon consent of a third party, the reasonableness of their belief will go to the section 24(2) analysis.[5]

Issues of consent seizure will most often be dealt with by way of warrantless seizure under s. 489.[6]

  1. Reeves, 2017 ONCA 365 (CanLII) at para 42 ("Consent must also come from the right person. The person who consents must be the person whose rights are engaged. Someone else cannot waive your s. 8 rights for you.")
    R v Cole, 2012 SCC 53 (CanLII)
  2. Reeves, ibid. at para 47 citing Search and Seizure Law in Canada
  3. Reeves, ibid. at para 49
  4. R v Barrett, [1995] O.J. No. 920 (Ont. C.J.)(*no CanLII links)
  5. R v DiPalma, 2008 BCCA 342 (CanLII)
  6. R v RMJT, 2014 MBCA 36 (CanLII) at para 29

Joint Residency

An "authorized occupant" of a residence may give consent to a search.[1] This will usually include the homeowner. [2] However, consent is generally limited to common areas of the house, but not the "private areas of another resident, such as his or her bedroom or dresser".[3]

A parent of a suspect can usually consent to searches of the familial home where the suspect "does not expect restrictions on the access of others to those spaces".[4]

A landlord or neighbour does not constitute an "authorized occupant".[5]

Guests can have the authority to consent to a search of a home, however, the authorization can be revoked by the homeowner.[6]

The seizure of property "under mistaken authority is not necessarily fatal where authority otherwise exits".[7]

Consent of Accused's Parents
There will not necessarily be a violation of s. 8 where a parent consented to the search of the youth's bedroom.[8] Parents who exercise control over a child's room or property may remove any expectation of privacy.[9]

  1. R v Duarte (1987) 38 CCC (3d) 1 (ONCA), 1987 CanLII 175 (ON CA), at p. 11
    R v Currie 2008 ABCA 374 (CanLII) - resident gave consent to search house containing items of non-resident accused
  2. R v Smith 1998 ABCA 418 (CanLII) at para 5
  3. R v Reeves, 2017 ONCA 365 (CanLII) at para 43
  4. Reeves, ibid. at para 47
  5. R v Mercer, 1992 CanLII 7729 (ON CA), (1992) 70 CCC 180 (ONCA) - landlord
    R v Blinch (1993) 83 CCC 3d 158 (BCCA), 1993 CanLII 1433 (BC CA)
  6. R v Thomas 1991 CanLII 2736 (NL CA) aff'd at SCC
  7. R v R.M.J.T., 2014 MBCA 36 (CanLII) at para 64
  8. R v F.(D.M.), 1999 ABCA 267 (CanLII), (1999), 139 CCC (3d) 144 (Alta.C.A.),
    R v Figuerora [2002] O.J. No. 3138 (Ont. S.C.J.)(*no CanLII links)
    R v Scheck, 2002 BCSC 1046 (CanLII), [2002] BCJ No. 1671 (B.C.S.C.)
  9. F(DM), supra

Computers

Police may seize a hard drive where a computer repair technician has been given authority to examine the contents of the hard drive and finds illegal images.[1] The computer repair technician is not a agent of the state in calling the police.[2]

Joint interest in a thing such as a computer can permit one of the joint owners to give consent to search it.[3] However, in the case of an estranged husband, the ex-wife cannot consent to a search.[4]

Employer Consent
An employer cannot provide consent to intrude on the expectation of privacy of an employee.[5]

  1. R c Piette, 2009 QCCQ 14499 (CanLII)
    R v Winchester, 2010 ONSC 652 (CanLII)
  2. Winchester, ibid.
  3. R v Pommer, 2008 BCSC 423 (CanLII) - wife consenting to search of husband's property
  4. R v Libby, 2008 NBQB 36 (CanLII)
  5. R v Cole, at paras 74 to 79

Mandatory Consent

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 (CanLII)

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.

Related: Disclosure

See Also

Search Incident to Detention

General Principles

See also: Investigative Detention

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."[1] If the search goes beyond the purpose of officer safety and becomes investigative then a lawful search can become unlawful.[2]

There is no general power to search bags or vehicles incident to detention.[3]

  1. R v Mann 2004 SCC 52 (CanLII), [2004] 3 SCR 59, per Iacobucci J at para 40
    See also R v Clayton, 2007 SCC 32 (CanLII), [2007] 2 SCR 725, per Abella J
    see also R v Plummer, 2011 ONCA 350 (CanLII), per MacPherson JA
  2. R v Calderon, 2004 CanLII 7569 (ON C.A.), per Laskin JA
    R v Logan, 2005 ABQB 321 (CanLII), per Macklin J
    R v Byfield, 2005 CanLII 1486 (ON C.A.), per Rosenberg JA
    R v Cooper, 2005 NSCA 47 (CanLII), per Fichaud JA
  3. R v Plummer, 2011 ONCA 350 (CanLII), per MacPherson JA

Search of Person

Religious Dressings
The right of a detainee to observe religious practices such as wearing a turban must be balanced against the security concnerns.[1]

A failure to return a turban to a detainee while they are still in custody is an interference with religious freedoms and may result in a breach of the religious protections under the Charter and would result in exclusion of evidence under s. 24(2) of the Charter.[2]

  1. R v Purewal, 2014 ONSC 2198 (CanLII), per Durno SCJ
    R v Singh, 2016 ONCJ 386 (CanLII), per Copeland J at para 9
  2. Purewal, ibid.
    Singh, supra

Vehicle Searches

A warrantless search of a vehicle may be reasonable where there are reasonable grounds to believe the vehicle contained illegal items.[1] 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.[2]

It has been suggested the following requirements for a warrantless search:[3]

  1. that the vehicle be stopped or the occupants be detained lawfully;
  2. that the officer conducting the search has 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.
  1. R v McComber, (1988), 44 CCC (3d) 241 (Ont. C.A.), 1988 CanLII 7062 (ON CA), per Dubin ACJO
    Johnson v Ontario (Minister of Revenue), 1990 CanLII 6742 (ON CA), (1990), 75 O.R. (2d) 558 (Ont. C.A.), per Arbour JA
    See also R v Ruiz, 1991 CanLII 2410 (NB C.A.), per Angers JA
    R v McKarris, [1996] 2 SCR 287 1996 CanLII 205 (SCC), per Sopinka J
    R v Damianakos Regina v Klimchuk, 1991 CanLII 3958 (BC C.A.), per Wood JA
    R v Lee, 1995 CanLII 1135 (BC C.A.), per Wood JA
    R v Caslake, [1998] 1 SCR 51, 1998 CanLII 838 (SCC), per Lamer CJ
    R v Nicolosi, 1998 CanLII 2006 (ON C.A.), per Doherty JA
  2. R v Klimchuk, 1991 CanLII 3958 (BC CA), (1991), 67 CCC (3d) 385 (BCCA), per Wood JA
    see also R v Rao, 1984 CanLII 2184 (ON CA), (1984), 12 CCC (3d) 97 (Ont. C.A.), per Martin JA
    R v Debot, (1986), 30 CCC (3d) 207 (Ont. C.A.), 1986 CanLII 113 (ONCA), per Martin JA
  3. R v IDD, 1987 CanLII 206 (SKCA), per Sherstobitoff JA

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".[1]

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.[2] 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.[3]

It is permissible to search a vehicle for identification where the driver has failed to produce documentation while being investigated for an offence.[4]

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.
  1. R c Higgins, 1996 CanLII 5774 (QC C.A.), per curiam
  2. R v Mellenthin, 1992 CanLII 50 (S.C.C.), [1992] 3 SCR 615, per Cory J
  3. R v Stephens, [1993] BCJ No. 3017 (B.C.S.C.)(*no CanLII links)
    R v Jacques, 1996 CanLII 174, [1996] 3 SCR 312, per Gonthier J
    R v Murray, 136 CCC (3d) 197 (Que. C.A.), 1999 CanLII 13750, per curiam
  4. R v Burachenski, 2010 BCCA 159 (CanLII), per Bennett JA ("the law is clear that the police are entitled to search a vehicle for identifying documentation when it is not produced by a driver who is being investigated for an offence.")

Seizure Incident to Detention

Case Digests

Search Incident to Arrest

General Principles

See also Warrantless Arrests for details on arrest powers

Common Law Rule for Search
The common law creates an exception to the rule that a warrantless search is prima facie unreasonable when the search is incidental to arrest (SITA).[1] This exception is limited by courts to protect the individual's privacy rights.[2]

An officer undertaking a search incident to arrest does not need to have reasonable and probable grounds.[3] It is only necessary that the officer have "some reasonable basis" or "reasonable prospect" to believe that evidence towards the offence will be found.[4]

An accused has no expectation of privacy with respect to his personal belongings seized upon arrest.[5] There is no "blanket authority" to search a car incident to arrest.[6]

Authority Arises from Arrest Power
The power does not arise from a reduced expectation of privacy of the arrested person. Rather it comes from "the need for the authorities to gain control of the situation and the need to obtain information."[7]

The lawfulness of a search incident to arrest flows from the lawfulness of the arrest itself and so does not require independent reasonable grounds. [8]

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.[9]

It is said that "[i]f the arrest is unlawful, the search is also unlawful”.[10]

Valid Objective
The common law power is discretionary to the officer based on whether the law can be applied safely and effectively without a search.[11]

The search must be for a valid objective in the administration of justice, such as the discovery of things that may be a threat to the safety of the officer, accused, or public, items that may facilitate escape, or items that may be evidence to the offence for which he was arrested.[12]

The "primary" purposes of search incident to arrest are:[13]

  1. to ensure the safety of the police and the public; [14]
  2. to protect evidence;
  3. to discover evidence

There is an open list of legitimate purposes. However, a valid purpose must be "truly incidental" to the arrest.[15]

Where the purpose is to discover evidence there must be "a reasonable prospect the evidence will relate to the offence for which the person is arrested."[16]

The police conducting the search "subjectively must have a valid purpose in mind, the reasonableness of which must be considered objectively."[17]

The decision to search must be "reasonably necessary in light of the totality of the circumstances." It cannot be on vague concerns for safety.[18]

The search should not be used "to intimidate, ridicule or pressure the accused in order to obtain admissions." It should not "be conducted in an abusive fashion and, in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation." [19]

Seizure of Evidence upon Discovery
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. [20] This power is derived from the common law. [21]

The police are obliged to safeguard items they have seized.[22]

Level of Interference
Searches that have greater impact to "human dignity, serious interference with bodily integrity and significant invasions of privacy require a higher degree justification for the search and seizure."[23]

The use of "physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation."[24]

Timing of Search
The timing of the search does not need to be immediately after the arrest is affected, it should be done "within a reasonable period of time after the arrest".[25] </reF> A "substantial delay" will permit the making of an inference that the search was not sufficiently connected to the arrest.[26]

Depending on the circumstances, hours may pass and the search may be still lawful.[27]

Just because there is time to obtain a warrant is not determinative of whether a warrant is needed.[28]

  1. Cloutier v. Langlois, [1990] 1 SCR 158, 1990 CanLII 122 (SCC), per L'Heureux-Dube J - first case recognizing exception to warrant requirement
    R v Stillman 1997 CanLII 384 (SCC), (1997), 5 C. R. (5th) 1 (SCC), per Cory J
    R v Golden 2001 SCC 83 (CanLII), [2001] 3 SCR 679, per Iacobucci and Arbour JJ, at para 23
    Compare with US perspective: United States v Robinson, 414 U.S. 218 (1973)
    Golden, ibid., at p. 488
  2. R v Hiscoe, 2013 NSCA 48 (CanLII) at para 33
  3. R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, per Lamer CJ, at paras 13, 17
  4. Caslake, supra at para 20, 22 ("some reasonable prospect of securing evidence of the offence for which the accused is being arrested")
    Hiscoe, supra at para 38 ("reasonable basis")
  5. R v Blais 2004 CanLII 8466 (ON C.A.)
  6. R v Bulmer, 2005 SKCA 90 (CanLII)
  7. Caslake, supra at para 17
  8. Caslake, supra at para 13
  9. R v Rajaratnam, 2006 ABCA 333 (CanLII) at para 20
  10. R v Mohamad, 2004 CanLII 9378 (ON CA), (2004), 69 O.R. (3d) 481 (C.A.) at para 28
  11. Stillman, supra at p. 278 ("This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search.")
  12. Stillman, supra ("The search must be for a valid objective ..., such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused.")
    Caslake, supra at para 22
  13. Caslake at para 19
    see also R v Fearon, 2014 SCC 77 (CanLII), per Cromwell J - modifies "valid law enforcement purposes" for cell searches
  14. see also Cloutier v Langlois, 1990 CanLII 122 (SCC), [1990] 1 SCR 158, per L'Heureux-Dubé J
  15. Caslake, supra at paras 10, 20, 25
  16. Caslake, supra at para 22
  17. R v Majedi (M.F.), 2009 BCCA 276 (CanLII) at para 19 - summarizing Caslake
  18. R v Mann, 2004 SCC 52 (CanLII) at para 40
  19. Stillman, supra
  20. R v Morrison 1987 CanLII 182 (ON C.A.), (1987), 35 CCC (3d) 437 see also s. 489
  21. Cloutier v Langlois, supra
  22. R v Strilec, 2010 BCCA 198 (CanLII)
    R v Wint 2009 ONCA 52 (CanLII)
  23. Hiscoe, supra at para 37
  24. Stillman, supra at para 158
  25. e.g. Caslake, supra - search of vehicle for inventory purposes occurred 6 hours after arrest was unlawful. per Lamer CJ at para 24 ("There is no need to set a firm deadline on the amount of time that may elapse before the search can no longer said to be incidental to arrest. As a general rule, searches that are truly incidental to arrest will usually occur within a reasonable period of time after the arrest")
    Fearon, 2014 SCC 77
  26. Caslake, supra at para 24 ("A substantial delay does not mean that the search is automatically unlawful, but it may cause the court to draw an inference that the search is not sufficiently connected to the arrest. Naturally, the strength of the inference will depend on the length of the delay, and can be defeated by a reasonable explanation for the delay.")
  27. Lawful:
    R v Farmakis, 2011 NSSC 101 (CanLII), at paras 98 to 112
    R v Nolet, [2010] 1 SCR 851, 2010 SCC 24 (CanLII) at para 50
    R v Washington, 2007 BCCA 540 (CanLII), at para 97, denied leave [2007] S.C.C.A. No. 570
    R v Eden and Perry, 2004 NBQB 338 (CanLII), affirmed on other grounds [2005] NBJ No. 472 (C.A.)
    R v Clarke, [2003] O.J. No. 3884, 2003 CanLII 64244 (ON SC), per Ferrier J, at paras 217 to 226
    R v Miller, 1987 CanLII 4416 (ON CA), [1987] O.J. No. 989 (C.A.) at para 25
    Unlawful:
    R v Hiscoe, 2013 NSCA 48 (CanLII) - one month before searching cell phone
    R v D.J.S., [2002] BCJ No. 1198 (Sup. Ct.)(*no CanLII links) at paras 29-30
    R v M.C., [1994] O.J. No. 3181 (Gen. Div.)(*no CanLII links) at para 19
  28. R v Sinclair, 2005 MBCA 41 (CanLII), at para 18

Person Arrested

Searches conducted in the normal practice of creating an inventory of items on a person who is being lodged in cells for an offence is a permissible search.[1]

Searches that intrudes on "bodily integrity or human dignity" will be subject to a higher standard for warrantless search.[2]

U.S. case law has developed doctrine that will often permit search of containers in possession or control of the person.[3]

  1. R v Unaru, [1994] BCJ No 1731(*no CanLII links) at 15
  2. R v Golden, 2001 SCC 83 (CanLII), [2001] 3 SCR 679 at para 99
    e.g. see Strip Searches below
  3. New York v Belton, U.S. 454 (1981) - in the context of search of a vehicle
    United States v Chadwick, 433 U.S. 1 (1977) - search of footlocker denied

Strip Searches

See also: Manner of Search#Strip Searches

A strip search refers to "the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas, namely, genitals, buttocks, breasts (in the case of a female), or undergarments."[1]

They are considered highly intrusive because:[2]

  • They represent a significant invasion of privacy;
  • They are often a humiliating, degrading and traumatic experience; and
  • Even the most sensitively conducted strip search is highly intrusive.

Given the serious "infringement of privacy and personal dignity" of a strip search, it will only be valid at common law where it is "conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee's possession or evidence related to the reason for the arrest."[3]

The purpose relating the search for evidence is "governed by the need to preserve the evidence and to prevent its disposal by the arrestee."[4]

Necessary Grounds
It is not sufficient to establish reasonable and probable grounds for arrest. A strip search on an individual can only be performed where there is additional reasonable and probable grounds to do so or there are exigent circumstances.[5]

Burden or Onus
The onus is upon the Crown to establish the sufficiency of grounds to conduct the strip search.[6]

It Should Not be Routine
Given the level intrusion, strip searches should not be carried out "routinely or under policy".[7] There should be a "compelling reason" to undertake one.[8]

Manner of Search
The strip search must be conducted in a reasonable manner. It cannot be done "abusively or for the purpose of humiliating or punishing the arrestee".[9] However, no matter what the search will be "humiliating and degrading".[10]

Guidelines suggest that the following questions should be considered before undertaking a strip search:[11]

  1. Can the strip search be conducted at the police station and, if not, why not?
  2. Will the strip search be conducted in a manner that ensures the health and safety of all involved?
  3. Will the strip search be authorized by a police officer acting in a supervisory capacity?
  4. Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?
  5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
  6. What is the minimum of force necessary to conduct the strip search?
  7. Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
  8. Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?
  9. Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact?
  10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?
  11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?

Usually Take Place at Station
It is rarely justified that a strip search should occur outside of the police station. It will usually only be under exigent circumstances that it will take place at the location of arrest.[12]They represent an even greater intrusion upon the privacy and bodily integrity of the accused.[13]

Where a search is conducted outside of the station, the Crown will have the additional burden of establishing that there was "reasonable and probable grounds to believe that it [was] necessary to conduct the search in the field rather than at the police station."[14]

There must be a "demonstrated necessity and urgency to search for weapons or objects that could be used to threaten the safety of the accused, the arresting officers or other individuals" and that it would be "unsafe to wait and conduct the strip search at the police station".[15]

The risk of disposal of drugs found on the person is not justified where the accused is detained and transported in a police cruiser to the station where continuity will be maintained.[16]

  1. R v Golden, 2001 SCC 83 (CanLII), [2001] 3 SCR 679
  2. Golden, ibid. at para 82
    R. v. DeYoung, 2018 NSSC 39 (CanLII), per Wood J, at para 18
  3. Golden, ibid.
  4. Golden, ibid. at para 93
  5. Golden, ibid. at para 99
  6. Golden, ibid.
  7. Golden, ibid.
  8. Golden, ibid. at para 95
  9. Golden, ibid. at para 95
  10. Golden, ibid.
  11. Golden, ibid. at para 101
  12. Golden, supra at para 102
  13. Golden, supra at para 102
  14. Golden, supra at para 102
  15. Golden, supra at para 102
  16. Golden, supra at para 93

Taking Bodily Samples

See also: Seizure of Bodily Samples

The higher standard used in strip searches will equally apply to the taking of hair samples and cheek swabs.[1]

Penile Swabs
There is divide on whether a penile swab is ever available without a warrant.[2]

In Alberta, a warrantless search by way of a penile swab requires exigent circumstances.[3] It has been suggested the circumstances that will permit such a search "will rarely arise".[4]

A penile swab is considered more intrusive than a strip search. It is closer to taking a bodily sample of a suspect.[5]

The "non-consensual interferences with the body are experienced as a violation of human dignity".[6]

Evidence establishing that the time necessary to apply for a warrant would result in evidence significantly deteriorating or disappearing that award will be required.[7]

  1. R v Stillman, [1997] 1 SCR 607, 1997 CanLII 384 (SCC)
    R v Golden, 2001 SCC 83 (CanLII), [2001] 3 SCR 679 at para 99
  2. Warrant Only: R v Saeed, 2014 ABCA 238 (CanLII), per Watson J.
    R v Laporte, 2012 MBQB 227 (CanLII)
    No Warrant Needed: Saeed, supra per McDonald JA.
    R v Amey, 2013 ONSC 5108 (CanLII)
    R v Harasemow, 2014 BCSC 2287 (CanLII)
  3. Saeed, supra
  4. Saeed, supra, at para 50
  5. Saeed
  6. Saeed
  7. Saeed at para 62

Residences

See also: Warrantless Entry into Dwellings in Exigent Circumstances and Entry into Place to Execute an Arrest Warrant

The power to search a person on arrest will generally extend to the search of the premises wherein he was found which was under his control.[1]

Section 529.3 authorizes warrantless entry into a residence.[2]

A warrantless arrest of an individual at their front door may, in certain circumstances, permit the officers to perform a sweep of the residence for the presence of other people and to preserve evidence.[3]

  1. R v Rao, 1984 CanLII 2184 (ON CA), (1984), 12 CCC (3d) 97 (ON CA), per Martin JA
    R v Plourde (1985), 23 CCC (3d) 463, 1985 CanLII 3513 (QC CA), per Dube JA - search of residence upon arresting accused for sex assault
  2. see Warrantless Entry into Dwellings in Exigent Circumstances
  3. R v Ewart, 1995 CanLII 759 (BC CA) - accused arrested at front door for drug offence
    R v Luu, 2006 BCCA 73 (CanLII)
    R v R.S.T., 2007 MBQB 166 (CanLII)

Motor Vehicles

The common law power of police to search incident to arrest can include the accused's motor vehicle.[1] 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.[2] There is no heightened expectation of privacy justifying an exemption from the usual common law principles of search incident to arrest.[3] For example, a search of a brief case found in a stolen vehicle incident to arrest is justified.[4] The presumption of unreasonableness of a warrantless search is rebutted upon proof that the arrest was lawful and the search was reasonable.[5]

Where the two accused are arrested in a vehicle for breaching no contact conditions, that alone is not sufficient for the officer to have reasonable and probable grounds to search the vehicle incident to arrest.[6]

The removal of panels from the vehicle may in limited cases be justified as a search incident to arrest.[7]

A search of a motor vehicle in relation to an investigation for breach of recognizance may generally not be valid.[8]

Vehicle Search Incident to Arrest Warrant
A search of vehicle incident to the execution of an arrest warrant, as opposed to a search pursuant to an investigation, will usually not permissible and would violate s. 8 of the Charter.[9]

Vehicle Seizure
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.[10]

Requesting Driver's Licence
A request by a police officer for a driver's licence and insurance is not a search.[11]

  1. R v Polashek 1999 CanLII 3714 (ON CA), (1999), 134 CCC (3d) 187 (Ont. C.A.)
    R v Alkins 2007 ONCA 264 (CanLII)
  2. R v Parchment, 2007 BCCA 326 (CanLII)
    Caslake at para 19.
  3. R v Caslake, 1998 CanLII 838, [1998] 1 SCR 51
    R v Stillman, 1997 CanLII 384 (SCC), [1997] 1 SCR 607
  4. R v Mohamad, 2004 CanLII 9378 (ON C.A.), 182 CCC (3d) 97 (Ont. C.A.)
  5. R v Klimchuk (1991), 67 CCC (3d) 385, 1991 CanLII 3958 (BC CA)
  6. R v Tran, 2003 ABPC 132 (CanLII)
  7. R v Smellie, 1994 CanLII 1612 (BC CA)
  8. R v Majedi, 2009 BCCA 276 (CanLII), at para 20
  9. R v Forester, 2009 ABPC 278 (CanLII) – Arrest warrant related to charge of assault causing bodily harm
  10. R v Nicolisi 1998 CanLII 2006 (ON C.A.)
  11. R v Hufsky, 1988 CanLII 72, [1988] 1 SCR 621, per Le Dain J, at p.637

Inventory Searches

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. [1]

An inventory search "per se" does not amount to a "valid objective" in criminal law that can produce evidence that is admissible at a criminal trial.[2]

However, provincial motor vehicle legislation may permit inventory searches under the authority to impound a vehicle.[3] This authority extends to permit police to look inside bags.[4]

  1. R v Nicolosi, 1998 CanLII 2006 (ONCA) at para 30
  2. R v Nolet, [2010] 1 SCR 851, 2010 SCC 24 (CanLII), per Binnie J, at para 53
  3. R v Nicolosi, 1998 CanLII 2006 (ON CA)
    R v Strilec, 2010 BCCA 198 (CanLII), per Ryan JA
  4. R v Wint, 2009 ONCA 52 (CanLII)

Passengers of Vehicles

A passenger in a motor vehicle generally does not have a reasonable expectation of privacy.[1] However, there is an expectation of privacy to the limited area underneath the passenger.[2]

  1. R v Belnavis, [1997] 3 SCR 341, 1997 CanLII 320
  2. R v Dreyer, 2008 BCCA 89 (CanLII)

Trunks and Bags

An officer performing a vehicle stop and begins an impaired driving investigation may use the observations of the driver's impairment to search trunk and bags found within the car for the purpose of "locat[ing] evidence helpful to the impaired driving offence".[1]

In certain circumstances, police may search a vehicle to determine whether there are weapons found in the vehicle.[2]


  1. R v Pearson, 2017 ONCA 389 (CanLII), per Pardu JA leave ref'd [2017] SCCA No 465, at paras 23 to 26
  2. R v Majedi 2009 BCCA 276 (CanLII) -- incident to arrest

Computers, Cell Phones and Digital Storage

See also Reasonable_Expectation_of_Privacy#Computers_and_Electronic_Devices

Warrantless search of a cell phone incident to arrest is permitted where:[1]

  1. The arrest was lawful;
  2. The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:
    1. Protecting the police, the accused, or the public;
    2. Preserving evidence; or
    3. Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;
  3. The nature and the extent of the search are tailored to the purpose of the search; and
  4. The police take detailed notes of what they have examined on the device and how it was searched.

The search not permitted when it is in relation to a "minor offence".[2]

Timing of Search
Searches should be done "promptly upon making an arrest".[3]

Discovery of Evidence
The "valid reasons" relating to the discovery of evidence should "not routinely permitted simply for the purpose of discovering additional evidence".[4] It must serve an "immediate investigative purpose".[5] The officer must be able to explain "why it was not practical..., in all the circumstances of the investigation, to postpone the search until they could obtain a warrant." [6]

Storage Devices
A search memory stick without warrant upon arrest for credit card fraud has been found to violate s. 8.[7]

  1. R v Fearon, 2014 SCC 77 (CanLII), per Cromwell J, at para 83
  2. Fearon, ibid. ("a search of a cell phone incident to arrest will generally not be justified in relation to minor offences")
  3. Fearon, ibid. at para 16
  4. Fearon, ibid. at para 80
  5. Fearon, ibid. at para 80
  6. Fearon, ibid. at para 80
  7. R v Tuduce, 2011 ONSC 2749 (CanLII)

Seizure Incident to Arrest

See Also

Warrantless Search of Abandoned Property

Principles

A person gives up their section 8 rights including an expectation to privacy when their property becomes abandoned.[1]

The main issue is whether the claimant "acted in relation to the subject matter of his privacy claim in such a manner as to lead a reasonable and independent observer to conclude that his continued assertion of a privacy interest is unreasonable in the totality of the circumstances."[2] This is found as a matter of fact.[3]

The act of abandonment must be done by the owner of the object. Where abandonment was by act of a third party, then the privacy interest of the owner will still exist.[4]

The conduct of police in obtaining and processing the evidence is not a relevant consideration.[5]

Whether something is abandoned is a "highly factual inquiry".[6]

A main point of litigation is over whether the officer had grounds to believe that the property was abandoned. This is particularly true where the information is based on hearsay or assumptions.

  1. R v Patrick, 2003 SCC 17 (CanLII), per Binnie J at para 22-23, 25
    R v Plummer, 2011 ONCA 350 (CanLII), [2011] O.J. No. 2034 (C.A.), per MacPherson JA
    R v Nesbeth 2008 ONCA 579 (CanLII), (2008), 238 CCC (3d) 567 (Ont. C.A.), per Rosenberg JA
    R v B.(L.) 2007 ONCA 596 (CanLII), (2007), 227 CCC (3d) 70 (Ont. C.A.), per Moldaver JA
    R v Stillman, 1997 CanLII 384 (SCC), [1997] 1 SCR 607, per McLachlin J (dissenting) at para 223
    R v Dyment, 1988 CanLII 10 (SCC) [1988] 2 SCR 417, per La Forest J, at p. 435
  2. Patrick, supra at para 25
    R v Wafid Delaa, 2009 ABCA 179 (CanLII), (2009), 244 CCC (3d) 502 (Alta. C.A.), per curiam at para 6, dismissed leave [2009] S.C.C.A. No. 302
  3. Patrick, supra at 25
  4. e.g. R v Law, [2002] 1 SCR 227, 2002 SCC 10 (CanLII), per Bastarache J
  5. Wafid Delaa at para 6 - undercover officer got DNA sample of accused by tricking them into taking part in gum-tasting survey
    c.f. R v Nguyen, 2002 CanLII 44910 (ON CA), (2002), 57 O.R. (3d) 589 (Ont. C.A.), per curiam - sample obtained in police station
  6. R v Hendrickson, 2018 BCSC 288 (CanLII), per Devlin J, at para 49

Examples

Deleted Files on a Computer
Files that have been deleted from a computer is not the equivalent of abandonment. Rather, it is a sign of an intent to keep data private from everyone including the accused.[1]

Garbage
Garbage, even when within the bounds of the owner's property, can still have an abandoned privacy right.[2] Garbage that is not within reach of the lot line will not be said to be "unequivocally abandoned".[3]

Throwing Away a Backpack
A person who throws away his backpack while being chanced by police is abandoning his right to privacy in its contents.[4]

  1. R v McNeice, 2013 BCCA 98 (CanLII), per Finch CJ
  2. R v Patrick, [2009] 1 SCR 579, 2009 SCC 17 (CanLII), per Binnie J - garbage on private property but on edge of property line and accessible from public space
  3. Patrick, ibid. at para 62
  4. R v Nesbeth, 2008 ONCA 579 (CanLII), per Rosenberg JA

Case Digests

See Also

Plain View Search and Seizure

General Principles

A person has no reasonable expectation of privacy in what he knowingly exposes to the public or abandons in a public place.[1]

A peace officer may seize any evidence which he observes by use of one or more of his senses from a lawful vantage point.[2] If an officer is on a premises lawfully and observes items believed to be illegal, it is lawful for him to seize the items. [3]

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. [4] Without a lawful search or lawful entrance, there can be no basis for the doctrine.[5]

Plain view observations of only segments of an item of evidence can be sufficient to establish grounds of arrest. The officer should not move obstructions from their view.[6]

  1. R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432, per Binnie J at para 40
    R v Boersma, 1994 CanLII 99 (S.C.C.), [1994] 2 SCR 488, per Iacobucci J
  2. R v Fitt, 1995 CanLII 4342 (NS C.A.), per Hallett JA
    R v Lauda, [1998] 2 SCR 683, 1998 CanLII 804, per Cory J
    R v Jackson, 2005 ABCA 430 (CanLII), per curiam
  3. R v Shea, 1982 CanLII 2128 (ON SC), (1982), 142 DLR (3d) 419 (Ont. S.C.), per Steele J - Court upholds seizure of drugs discovered during residential search
    R v Hébert, 1990 CanLII 3116 (QC CA), (1990), 60 CCC (3d) 422 (Que. C.A.), per Brossard JA
    R v Grenier, 1991 CanLII 3657 (QC CA), (1991), 65 CCC (3d) 76 (Que. C.A.), per curiam
  4. R v Dreysko, 1990 ABCA 309 (CanLII), (1990), 110 A.R. 317 (Alta. C.A.), per Kerans JA
    R v Hern, 1994 ABCA 65 (CanLII), (1994), 149 A.R. 75 (Alta. C.A.), per curiam
  5. R v Nielsen 1988 CanLII 213, 43 CCC (3d) 548 (Sask. C.A.)
  6. R v Bonilla-Perez, 2014 ONSC 2031 (CanLII), at para 38
    R v Jones, 2011 ONCA 632 (CanLII), (2011), 278 CCC (3d) 157 at paras 56-8 (Ont. C.A.)

Plain View Doctrine

There are generally three requirements for the plain view doctrine:[1]

  1. the police officer must lawfully make an initial intrusion or otherwise properly be "lawfully positioned" where 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.[2] However, the "open fields" doctrine does not encompass all open air private properties.[3]

It does not stretch so far as to include a bag found in a locker at a public bus station.[4]

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.[5]

The plain view doctrine does not permit an officer to open a gun case to examine the contents of the case while assisting a sheriff in executing a valid eviction order.[6]

The doctrine does not apply to circumstances where police rely upon third party reports of the contents of places otherwise protected by privacy. For example a security guard reporting the contents of a bus station locker to police.[7]

Police returning a stolen safe cannot be said to inadvertently discover documents found within that were immediately apparent to relate to tax fraud.[8]

The doctrine is not an exploratory search power, but rather is a seizure power.[9]

Detecting a smell in the basement of a house an officer is lawfully in cannot justify entry into the basement without warrant on the basis of plain view.[10]

The doctrine cannot be used to avoid the requirement of reasonable and probable grounds to search or seize evidence.[11]

  1. R v Ruiz 1991 CanLII 2410 (NB C.A.), (1991), 10 C.R. (4th) 34 (N.B.C.A.)
    R v Belliveau and Losier 1986 CanLII 88 (NB C.A.), (1986), 75 N.B.R.(2d) 18
    R v Jones, 2011 ONCA 632 (CanLII) at para 54 - describes 4 requirements
    R v Spindloe, 2001 SKCA 58 (CanLII), (2001), 154 CCC (3d) 8 (SKCA) at paras 29-37
    R v Fawthrop, 2002 CanLII 45004 (ON CA), (2002), 166 CCC (3d) 97 (O.C.A.), at paras 28-34
  2. R v Boersma, 1994 CanLII 99 (S.C.C.)
    R v Patriquen 1994 CanLII 3963, (1994), 36 C.R. (4th) 363 (NSCA); appeal dismissed on other grounds, 1995 CanLII 77, [1995] 4 SCR 42
  3. R v Kelly, 1999 CanLII 13120 (NB C.A.)
  4. R v Buhay, 2003 SCC 30 (CanLII)
  5. R v Makhmudov, 2007 ABCA 248 (CanLII) at para 19
  6. R v Stevens, 2011 ONCA 504 (CanLII),
  7. R v Buhay per Arbour J. at para 37
  8. R v Law, [2002] 1 SCR 227, 2002 SCC 10 (CanLII)
  9. R v Smith (1996), 126 CCC (3d) 62 (Alta. C.A.), 1998 ABCA 418 (CanLII), per Conrad JA
    R v Fawthrop, (2002), 2002 CanLII 45004 (ON CA), 166 CCC (3d) 97 (Ont. C.A.), at para 30
    R v Spindloe, (2001), 2001 SKCA 58 (CanLII), 154 CCC (3d) 8 (Sask. C.A.), per Jackson JA
  10. Smith, ibid. at paras 19 to 25
  11. Law, supra, at para 27

Officer Trespassing and Perimeter Searches

Observations should be made without violation of the law. Police making observations by trespassing at night is not permitted.[1]

An officer cannot use information gained through a perimeter search in an ITO.[2] Nor can they use information obtained by trespass.[3]

An officer may trespass upon a person's property for the purpose of communicating with the resident.[4] They may also approach the door, knock on it and speak to anyone who chooses to speak with them.[5]

  1. R v Hok, 2005 BCCA 132 (CanLII)
  2. R v Côté, 2011 SCC 46 (CanLII), [2011] 3 SCR 215 at para 22, 26
    R v Azzolini, 1995 ABCA 119 (CanLII) at para 2
  3. e.g. R v Gendron and Greffard, 2004 BCPC 446 (CanLII) at para 19
  4. R v Hyde, 2010 ABPC 30 (CanLII) at para 13
  5. Hyde at para 13

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.[1]

  1. see R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432

Sniffer Dogs

See also: Reasonable Suspicion

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.

A drug sniffer dog may be used to search on the basis of the lower standard of "reasonable suspicion".[1]

  1. R v Kang-Brown 2008 SCC 18 (CanLII)

X-Ray Machines

The police cannot seize property and then subject it to an x-ray scan without a warrant where it is not in the normal course of airport screening.[1]

  1. R v Fry, 1999 CanLII 18945 (NL CA)

Police Invitees

When police are invited into a residence they are not engaged in a search. However if they begin to look around for evidence, particularly going into dofferent rooms of the residence, that may about to a search.[1]

  1. R v Choudhry, 2009 CanLII 384 (ON SC)

Statutory Seizure on Plain View

See also: Warrantless Seizure Under Section 489

Section 489 of the Code authorizes the seizure of anything upon lawful execution of police duties or execution of a warrant:

Warrantless Search in Exigent Circumstances

General Principles

Where there are "exigent circumstances", a police officer may forego the requirement of a search warrant. This typically applies in the non-investigative context where there is a risk to safety of the officer or a member of the public. It also applies where there is imminent danger of loss of evidence.[1]

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".[2]

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) [territorial search warrants] or 492.1(1) [tracking warrants] 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.
[annotation(s) added]


CCC

The Crown must present an "evidentiary basis" to establish the underlying police safety concerns.[3]

Similar exigent circumstances clauses exist in s. 49.1(4) of the Fisheries Act, R.S.C. 1985, c. F-14, s. 49.1(3), and s. 220(4) of the Canadian Environmental Protection Act, 1999, S.C. 1999, c.33.

United States Context
In the US, there exists an exception to their Fourth Amendment against residential entries in the context of the officer believing "that a person within is in need of immediate aid."[4]

  1. R v Tontarelli, 2009 NBCA 52 (CanLII), [2009] NBJ No 294, per Drapeau CJ (requires an "imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed")
  2. R v Tse, 2012 SCC 16 (CanLII){{perSCC|Moldaver and Karakatsanis JJ}
  3. R v Davis, 2012 ABPC 125 (CanLII), [2012] A.J. No. 488 (P.C.), per Lamoureux J at para 23
  4. Brigham City v Stuart, 547 U.S. 398 (2006)
    Mincey v Arizona, 437 U.S 385, 392 (1978)

Exigent Circumstances

Protecting Evidence

Exigent circumstances can arise where there is imminent danger and immediate action is required to prevent the loss, removal, destruction or disappearance of evidence.[1]

  1. James A. Fontana (The Law of Search and Seizure in Canada (3rd ed. 1992), at pp. 786-89 ("immediate action is required ... to secure and protect evidence of a crime")
    R v McCormack, 2000 BCCA 57 (CanLII), per Saunders JA, at para 21
    R v Grant, 1993 CanLII 68 (SCC), per Sopinka J at para 32 ("Exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed")

Protect Life and Public Safety

At common law, the police have a duty to protect life and ensure public safety which may authorize encroachment on otherwise protected privacy rights, including entry into private residences.[1] This power to intrude exists sole for the purpose of protecting life and safety, which includes locating "the ['unknown trouble' 911] caller and determine his or her reasons for making the call and provide such assistance as may be required". Once complete they must leave and cannot continue on a search of the premises.[2]

Police are always entitled to investigate any 911 calls, whether it extends to entry will depend on the circumstances.[3]

Police should look to alternative investigative methods other than performing a warrantless entry into a residence.[4]

The right to entry is not limited only to circumstances of 911 calls, but can include any circumstances of distress.[5]

The common law power to enter a premises under circumstances of distress requires that the judge consider:[6]

  1. Does the police conduct fall within the general scope of any duty imposed by statute or recognized at common law;
  2. Does the police conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty

Analysis must be of what were the known grounds at the time of the decision to enter into the premises.[7]

The police are not obliged to accept the word of any resident that "everything is fine" and are able to decide for themselves whether there is a risk to safety and life.[8]

911 Calls
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." [9]

  1. R v Godoy, 1999 CanLII 709 (SCC), [1999] 1 SCR 311, per Lamer CJ
  2. Godoy, ibid. at para 22
  3. Godoy, ibid.
    R v Norris, 2010 ONSC 2430 (CanLII), per Stach J, at para 18
  4. R v Jones, 2013 BCCA 345 (CanLII), per Neilson JA at para 37
  5. R v Borecky, 2011 BCSC 1573 (CanLII), per Joyce J
    R v Nguyen, 2017 BCPC 31 (CanLII), per Rideout J at para 74
    Norris, supra at para 15
  6. Godoy, supra at para 12
  7. Norris, supra at para 19
  8. R v Rohani Moayed, 2013 BCPC 361 (CanLII), per Blais J at para 98
  9. Godoy, ibid.

Serious Criminality

Police may also enter into a residence in a non-distress situation where they have reason to believe a potentially serious offence has occurred.[1]

  1. R v Johnston, 2014 NSSC 131 (CanLII), per Murray J at paras 58 to 59

Entry of Dwellings and Other Buildings

Weapons Offences

See also: Seizure of Firearms

Drug Offences

See also: CDSA Warrants

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

Information for search warrant
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) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,
(c) offence-related property, or
(d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 [possession of stolen property] or 462.31 [money laundering] of the Criminal Code

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.
...
Search of person and seizure
(5) Where a peace officer who executes a warrant issued under subsection (1) has reasonable grounds to believe that any person found in the place set out in the warrant has on their person any controlled substance, precursor, property or thing set out in the warrant, the peace officer may search the person for the controlled substance, precursor, property or thing and seize it.
Seizure of things not specified
(6) A peace officer who executes a warrant issued under subsection (1) may seize, in addition to the things mentioned in the warrant,

(a) any controlled substance or precursor in respect of which the peace officer believes on reasonable grounds that this Act has been contravened;
(b) any thing that the peace officer believes on reasonable grounds to contain or conceal a controlled substance or precursor referred to in paragraph (a);
(c) any thing that the peace officer believes on reasonable grounds is offence-related property; or
(d) any thing that the peace officer believes on reasonable grounds will afford evidence in respect of an offence under this Act.

Where warrant not necessary
(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.
Seizure of additional things
(8) A peace officer who executes a warrant issued under subsection (1) or exercises powers under subsection (5) or (7) may seize, in addition to the things mentioned in the warrant and in subsection (6), any thing that the peace officer believes on reasonable grounds has been obtained by or used in the commission of an offence or that will afford evidence in respect of an offence.
1996, c. 19, s. 11; 2005, c. 44, s. 13.
[annotation(s) added]


CDSA

Section 11(7) is believed to be constitutional.[1]

Section 11(7) of the CDSA requires:[2]

  1. the necessary conditions to permit the granting of a warrant
  2. exigent circumstances that make getting the warrant impractical
  1. R v Paterson, 2012 BCSC 2138 (CanLII), per Blok J
  2. R v McCormack, 2000 BCCA 57 (CanLII), per Saunders JA, at para 17

Wiretap

See Emergency Wiretaps

See Also

Warrantless Entry into Dwellings in Exigent Circumstances

General Principles

See also: Warrantless Search in Exigent Circumstances

Generally, a warrantless entry into a private residence is not permitted absent statutory authorization.[1]

Search of a rental room even with the consent of the building owner will also require a warrant.[2]

Statutory Exception
Sections between 529 to 529.5 were added in 1997 creating statutory authority to enter a dwelling:

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 [entry into residence to arrest] 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

Purpose of s. 529.3
Section 529.3 "relieves against the requirement for a warrant to arrest where exigent circumstances make it impractical to obtain one."[3]

Factors
On a warrantless entry into a residence the courts should look at factors including:[4]

  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?

Exigent Circumstances
A warrantless entry into a private dwelling (sometimes called the Godoy exception) is permitted for the purpose of protecting or assisting a person in distress.[5] This is a limited and extraordinary exception to the rule against privacy in the home.[6]

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."[7]

Exigent circumstances permitting warrantless entry into house will permit a full search of the residence for the purpose of satisfying that they have accounted for all residents. They do not need to rely solely on the reporting of the other people in the house. [8] The search however should be "cursory and noninvasive".[9]

Hot Pursuit
A warrantless entry is further permitted when it falls into the common law doctrine of "hot pursuit".[10]

Exterior of Property
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.[11]

  1. R v Silveira, [1995] 2 SCR 297, 1995 CanLII 89 (SCC), at paras 49
  2. R v Kenny (1992) 52 OAC 70(*no CanLII links)
  3. R v Knelsen, 2012 MBQB 242 (CanLII)
  4. R v Jamieson, 2002 BCCA 411 (CanLII) at para 24
  5. R v Godoy [1999] 1 SCR 311, 1999 CanLII 709
  6. R v Wilhelm, 2014 ONSC 1637 (CanLII), per Hill J at para 106
  7. R v DeWolfe 2007 NSCA 79 (CanLII), (2007), 222 CCC (3d) 491
    R v Knelsen, 2012 MBQB 242 (CanLII) (Exigent circumstances "include circumstances in which the police officer has reasonable grounds to suspect that entry is necessary to prevent imminent bodily harm or death to any person.")
  8. R v Depace, 2014 ONCA 519 (CanLII)
  9. Depace, ibid.
  10. R v Feeney, 1997 CanLII 342 (SCC), [1997] 2 SCR 13
  11. R v Kokesch, [1990] 3 SCR 3, 1990 CanLII 55 (SCC)

911 Phone Calls

A 911 call suggests an emergency, and when made, is considered "pressing and immediate" circumstances to permit warrantless entry. It is often a "distress call".[1]

Upon responding to a 911 call, the police "have authority to investigate" the purpose for the call. This includes the authority to "locate the caller and determine his or her reasons for making the call", but does not include any other intrusions in the dwelling house without "further permission".[2]

Typical reasons for 911 call relate to the caller seeking protection from domestic violence or aid after violence has occurred.[3] Sometimes the reasons are not clear at the time of the call due to lack of information or a dropped call.[4]

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. This even where no evidence of an ongoing crime exists.[5]

Forced entry into a dwelling-house is permitted where necessary to ensure the "health and safety" of individuals inside.[6] This can be established when the caller is calling from within the residence or is a neighbour.[7]

There must be a need to protect "life and safety" such that there is a "threat to life or limb".[8]

Whether the entry or specific actions were justified will depend on the facts of the particular case.[9]

Cancelled Calls
Where the 911 caller tries to cancel the initial emergency call, the police are entitled to consider whether the cancellation was genuine or by force. However, the police should consider other options, including interviewing the caller outside of the residence, before considering the option of entry into the dwelling. If the caller refused, then it may be inferred that she is under duress to stay.[10]

  1. R v Godoy, [1999] 1 SCR 311, 1999 CanLII 709 at paras 16, 19, 22
  2. Godoy at paras 22, 23, 28
  3. R v Wilhelm, 2014 ONCA 1637 (*no CanLII links) at para 106
    Godoy at paras 19, 21, 23, 28
  4. eg. see R v Jones, 2013 BCCA 345 (CanLII) at para 17
    Godoy at para 16, 19 - dropped call
  5. R v Godoy [1999] 1 SCR 311, 1999 CanLII 709
    R v Larson, 2011 BCCA 454 (CanLII) at paras 19 to 26
  6. Godoy at para 22
    Nicholls, 1999 CanLII 2750 (ON CA) at para 12
  7. Godoy at para 22
    Nicholls at para 12
  8. Godoy at para 22, 23, 28
  9. R v Godoy at para 22
    Jones at para 42
  10. R v Timmons, 2011 NSCA 39 (CanLII)

Safety

In urgent circumstance police may enter into an apartment to ensure public safety by securing weapons.[1]

The police must have exigent circumstances under s. 529.3 which requires "reasonable grounds to suspect entry into the home is necessary to protect a person’s imminent harm or death, or to prevent the imminent loss or destruction of evidence".[2]

It may also be justified in order to search for injured persons in an illegal drug lab.[3]

Or in order to safely accompany a female victim of domestic violence into a residence to secure her personal things.[4]

Entry into a dwelling due to "feelings of humanity and goodwill" will not be sufficient.[5]

Concerns for the safety of a child does not include entering the residence to investigate whether the parents are suitable for the child.[6]

  1. R v Golub (1997), 117 CCC (3d) 193 (Ont. C.A.), 1997 CanLII 6316 (ON CA), per Doherty JA -- applying Feeney
    R v Farrah, 2011 MBCA 49 (CanLII), per Chartier JA
    R v Stenning, 1970 CanLII 12 (SCC), [1970] SCR 631 - applying the Waterfield test
    see also s. 117.02
  2. R v Davidson, 2017 ONCA 257 (CanLII), per Laskin JA at para 21
  3. R v Jamieson, 2002 BCCA 411 (CanLII), per Saunders JA
  4. R v Sanderson (2003), 174 CCC (3d) 289 (Ont. C.A.), 2003 CanLII 20263 (ON CA), per MacPherson JA
  5. R v Tunbridge (1971), 3 CCC (2d) 303 (BCCA), 1971 CanLII 1194 (BC CA), per McFarlane JA
  6. Davidson, supra - an autistic child found in streets, peace officer enters the house to inspect that house is safe for child

Hot Pursuit Exception

At common law, the doctrine of hot pursuit permits a peace officer "to enter a private premises to make an arrest in hot pursuit".[1]

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."[2]

It has been said to mean the officer is "literally at the heels of a suspect at the moment the usspect enters a dwelling house.[3]

Before the doctrine applies, the police must "already have the power and grounds to arrest without a warrant" before entering the residence.[4]

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.[5]

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"[6]

  1. R v Macooh, 1993 CanLII 107 (SCC), [1993] 2 SCR 802 at para 13
  2. Macooh at para 24
    see also R v Hope, 2007 NSCA 103 (CanLII), [2007] NSJ No. 433 (C.A.), at para 30
    R v Clarke, 2005 CanLII 15452 (ON CA), [2005] O.J. No. 1825 (C.A.), at para 29
  3. R v Puyenbroeck, 2007 ONCA 824 (CanLII) at para 32
  4. see R v Van Puyenbroek 2007 ONCA 824 (CanLII) at para 21
  5. see also R v Haglof, 2000 BCCA 604 (CanLII), 149 CCC (3d) 248 and Van Puyenbroek
  6. Van Puyenbroek

Securing Evidence

See also: Warrantless Search in Exigent Circumstances

Entry into Place to Execute an Arrest Warrant

General Principles

See also: Search Incident to Arrest#Residences

When a suspect is the subject of an arrest warrant and he is believed to be found in a dwelling-house, the peace officer must seek a judicial authorization to enter the dwelling using a "Feeney" Warrant.[1]

A person has an increased privacy right in their home which prohibits warrantless entries even for the purpose of a lawful arrest[2] or seizure of evidence.[3]

Any power to enter a dwelling-house to carry out an arrest under a Criminal Code offence will equally apply to warrants under other federal Acts.[4]

A warrantless entry into a home is presumed unlawful.[5]

  1. R v Feeney, 1997 CanLII 342 (SCC), [1997] 2 SCR 13, per Sopinka J at para 45 (“generally a warrant is required to make an arrest in a dwelling house.")
  2. R v Feeney, ibid. at para 19-20
  3. R v Golub, 1997 CanLII 6316 (ONCA), per Doherty JA at para 41
  4. see s. 34.1 of the Interpretation Act
  5. R v Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, per Cory J, at para. 162

Implied Invitation to Knock

A peace officer is granted an implied licence by all residents to approach a residence, enter upon the property for the purpose of "knocking" at a door for the purpose of facilitating communication with occupant.[1] Occupants are deemed to have waived their privacy rights for the purpose on "facilitating communication" only and where the purpose goes beyond that it will be impermissible.[2]

Where a peace officer speaks to an occupant at the door who could be subject to arrest, the occupant is entitled to refuse to leave his residence and require police to get a "Feeney" warrant.[3]

  1. R v Evans, 1996 CanLII 248 (SC)
    R v Parr, 2016 BCCA 99 (CanLII), per Fitch JA at para 2
  2. Parr, ibid. at para 2
  3. R v Sulyk, 1999 CanLII 13919 (SKPC), per Whelan J at para 4
    R v Meier, 2009 SKPC 30 (CanLII), per Morgan J at para 23

Requirements

Sections 529 and 529.3 of the Code were added to address the requirements for a "Feeney" Warrant.[1]

Section 529 states:

Including authorization to enter in warrant of arrest
529. (1) A warrant to arrest or apprehend a person issued by a judge or justice under this or any other Act of Parliament may authorize a peace officer, subject to subsection (2), to enter a dwelling-house described in the warrant for the purpose of arresting or apprehending the person if the judge or justice is satisfied by information on oath in writing that there are reasonable grounds to believe that the person is or will be present in the dwelling-house.
Execution
(2) An authorization to enter a dwelling-house granted under subsection (1) is subject to the condition that the peace officer may not enter the dwelling-house unless the peace officer has, immediately before entering the dwelling-house, reasonable grounds to believe that the person to be arrested or apprehended is present in the dwelling-house.
R.S., 1985, c. C-46, s. 529; 1994, c. 44, s. 52; 1997, c. 39, s. 2.


CCC

Warrant to enter dwelling-house
529.1 A judge or justice may issue a warrant in Form 7.1 authorizing a peace officer to enter a dwelling-house described in the warrant for the purpose of arresting or apprehending a person identified or identifiable by the warrant if the judge or justice is satisfied by information on oath that there are reasonable grounds to believe that the person is or will be present in the dwelling-house and that

(a) a warrant referred to in this or any other Act of Parliament to arrest or apprehend the person is in force anywhere in Canada;
(b) grounds exist to arrest the person without warrant under paragraph 495(1)(a) or (b) [warrantless arrest] or section 672.91 [Arrest without warrant for contravention of disposition]; or
(c) grounds exist to arrest or apprehend without warrant the person under an Act of Parliament, other than this Act.

1997, c. 39, s. 2; 2002, c. 13, s. 23.
[annotation(s) added]


CCC

Reasonable terms and conditions
529.2 Subject to section 529.4 [executing a warrant to enter a residence of arrest], the judge or justice shall include in a warrant referred to in section 529 or 529.1 [entry into residence for arrest] any terms and conditions that the judge or justice considers advisable to ensure that the entry into the dwelling-house is reasonable in the circumstances.
1997, c. 39, s. 2.
[annotation(s) added]


CCC

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 [entry into residence for arrest] 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.
(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.<brt>[annotation(s) added]


CCC

Section 529.4 permits the judge authorizing a dwelling-house entry under s. 529 or 529.1, to omit announcing their presence before entry.

Section 529.5 permits the officer to apply for an entry warrant by telewarrant.[2]

The warrant requirement for arrrests within "dwelling-house" do not include potentially public spaces such as building elevators.[3]


  1. R v Neufeld, 2013 MBQB 46 (CanLII), per Oliphant J at para 56
  2. See Telewarrants
  3. R v Webster, 2015 BCCA 286 (CanLII), per Chiasson JA at paras 79 to 85

Executing Warrant

Omitting announcement before entry
529.4 (1) A judge or justice who authorizes a peace officer to enter a dwelling-house under section 529 or 529.1 [entry into residence to effect arrest], or any other judge or justice, may authorize the peace officer to enter the dwelling-house without prior announcement if the judge or justice is satisfied by information on oath that there are reasonable grounds to believe that prior announcement of the entry would

(a) expose the peace officer or any other person to imminent bodily harm or death; or
(b) result in the imminent loss or imminent destruction of evidence relating to the commission of an indictable offence.

Execution of authorization
(2) An authorization under this section is subject to the condition that the peace officer may not enter the dwelling-house without prior announcement despite being authorized to do so unless the peace officer has, immediately before entering the dwelling-house,

(a) reasonable grounds to suspect that prior announcement of the entry would expose the peace officer or any other person to imminent bodily harm or death; or
(b) reasonable grounds to believe that prior announcement of the entry would result in the imminent loss or imminent destruction of evidence relating to the commission of an indictable offence.

Exception
(3) A peace officer who enters a dwelling-house without a warrant under section 529.3 may not enter the dwelling-house without prior announcement unless the peace officer has, immediately before entering the dwelling-house,

(a) reasonable grounds to suspect that prior announcement of the entry would expose the peace officer or any other person to imminent bodily harm or death; or
(b) reasonable grounds to believe that prior announcement of the entry would result in the imminent loss or imminent destruction ofs evidence relating to the commission of an indictable offence.

1997, c. 39, s. 2.
[annotation(s) added]


CCC

Telewarrant

See also: Telewarrants

Telewarrant
529.5 If a peace officer believes that it would be impracticable in the circumstances to appear personally before a judge or justice to make an application for a warrant under section 529.1 or an authorization under section 529 or 529.4, the warrant or authorization may be issued on an information submitted by telephone or other means of telecommunication and, for that purpose, section 487.1 applies, with any modifications that the circumstances require, to the warrant or authorization.
1997, c. 39, s. 2.


CCC

See Also

Warrant Searches

Introduction

A warrant is a judicial order by a Judge or Justice of the Peace under statute authorizing a named person to enter into a location and seize specified evidence that is relevant to an offence.[1]

The warrant has the effect permitting intrusion of a person's reasonable expectations of privacy. This is not dependent on ownership.[2]

A search warrant is a "staple" investigative tool that assist police officers in determining the nature of a criminal offence and the identity of the culprit.[3]

Source of Authority
A justice of the peace has no common law authority to issue a warrant, he may only issue warrants as provided by statute.[4]

Presumptions
A warrant is presumed valid.[5] The onus is upon the party who challenges the sufficiency of the ITO supporting the warrant.[6]

  1. Nova Scotia v MacIntyre, [1982] 1 SCR 175, 1982 CanLII 14, per Dickson J at p. 179 [SCR] ("an order issued by a Justice under statutory powers, authorizing a named person to enter a specified place to search for and seize specified property which will afford evidence of the actual or intended commission of a crime")
  2. R v Pugliese, 1992 CanLII 2781, (1992), 71 CCC 295 (Ont. CA), per Finlayson JA - building owner unable to assert privacy rights over apartment
  3. R v Cunsolo, R v Cunsolo, 2008 CanLII 48640 (ON SC), [2008] O.J. No. 3754, per Hill J at para 135
  4. See Hutchison, The Law of Search and Seizure s. 16(b) citing R v Paint (1917) 28 CCC 171 (NSCA), 1917 CanLII 493 (NS CA), per Harris JA, ("At common law the dwelling of the subject is held to be immune from intrusion, unless there is express authority to justify the intrusion, and the 'person" of the subject is held equally sacred.")
  5. R v Sadikov, 2014 ONCA 72 (CanLII), 305 CCC (3d) 421, per Watt JA, at para 83
  6. R v Campbell, 2011 SCC 32 (CanLII), [2011] 2 SCR 549, per Charron J, at para 14

Types of Warrants

The Criminal Code provides for several types of search warrants:

  • 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)
  • 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. Most notable include:

  • Income Tax Act,
  • Excise Act,
  • Competition Act (s. 16),
  • Canadian Environmental Protection Act (s. 220),
  • Antarctic Environmental Protection Act (s. 32),
  • Hazardous Products Act (s. 22),
  • Bankruptcy and Insolvency Act, and
  • Fisheries Act
  1. R v Multiform Manufacturing Co, , [1990] 2 SCR 624 1990 CanLII 79, per Lamer CJ
    R v Grant [1993] 3 SCR 223 1993 CanLII 68, per Sopinka J

Purpose of a Warrant

A search warrant makes valid act which would otherwise be considered trespass.[1]

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."[2]

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.[3]

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." [4]

  1. R v Pugliese, 1992 CanLII 2781 (ON CA), per Finlayson JA ("entry upon private lands by officials of the state was a trespass unless there was a lawful authorization for the entry.")
  2. R v Vu, 2011 BCCA 536 (CanLII), per Frankel JA at para 30 citing CanadianOxy Chemicals Ltd. v Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 SCR 743, per Major J at 20-22
  3. Descôteaux v Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 SCR 860, per Lamer J at 891
    Vu, supra at para 29
  4. Vu, supra at para 31 citing R v Canadian Broadcasting Corp., (1992), 77 CCC (3d) 341 at 351 (Ont. Ct. (G.D.), 1992 CanLII 12752 (ON SC), per Moldaver J

Procedure for Obtaining a Warrant

An application for a search warrant consists of a request under the enabling provision along with evidence, usually in written form, supporting the application. This evidence usually takes the form of an "Information to Obtain" (ITO) with a draft warrant. Both are then 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 a basis to issue a warrant.[1]

An application for a warrant is an ex parte motion and as such must "make full, fair and frank disclosure of all material facts".[2]

A justice of the peace must act judicially in issuing warrants.[3] This requires that they maintain their independence.[4] They may not take part in the drafting process by reviewing an incomplete application and give advice on them.[5]

Signatures

A warrant that was signed before the ITO was sworn does not invalidate it. It is the "issuance" of the warrant, not the signing, that requires that it be supported by a sworn ITO.[6]

Notice

Judicial authorizations are generally done ex parte without any requirement of notice. However, the judge or justice retains overriding discretion to require notice where it is "deemed appropriate".[7]

  1. R v Debot, 1986 CanLII 113 (ON CA), (1986) 30 CCC 207 (Ont.CA), per Martin JA
    R v Richard, 1996 CanLII 5594 (NS CA), (1996) 150 NSR 232 (NSCA), per Freeman JA
  2. R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per Lebel J, at para 46
  3. see Hunter v Southam, supra
  4. R v Gray, 1993 CanLII 3369 (MB CA), per Scott CJ
  5. Gray, ibid.
  6. R v Ho, 2012 ABCA 348 (CanLII), per curiam
  7. R v Vice Media, 2018 SCC 53 (CanLII)(link pending), per Moldaver J

Rejecting Warrants

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.[1]

A judge or justice may indicate to the police seeking authorization that the process is believed to be wrong and brought under a different section. They may also advise on what further information may be needed and point out deficiencies. [2]

Appealing a Rejected Warrant
There is not normally a right of appeal for a rejected search warrant. However, an application of certiorari or mandamus may be available.[3]

Since there is no right of appeal, there is no prohibition against re-applying to the same or another judge or justice for the warrant with the same materials.[4]

  1. R v Truong, 2012 ABQB 182 (CanLII), per Macklin J
  2. R v Krist, 1998 CanLII 6105 (BC CA), per McEachern CJ, at para 8
    R v Gray, 1993 CanLII 3369 (MB CA), per Scott CJ ("It is of course open to a magistrate hearing an application for a warrant and considering the evidence presented to identify deficiencies and to reconsider the application when these deficiencies have been remedied by the police")
  3. R v Duchcherer and R v Oakes, 2006 BCCA 171 (CanLII), per Thackray JA, at para 33
  4. Duchcherer, ibid.

Different Territorial Divisions

See also: Definitions of Parties, Persons, Places and Organizations and Special Search Warrant Issues

Telewarrants

See also: Telewarrants

Exceptions to Requirement for Prior Judicial Authorizations

There are several common law and statutory exceptions to the rule that requires a judicial authorization to intrude upon a person's privacy rights:

Topics

Information to Obtain a Search Warrant

General Principles

The affiant police officer's role is to provide a "factual foundation" to justify the issuing of a warrant.[1] The officer has an obligation "to make full and frank disclosure of material facts, avoid boiler plate language and, whenever possible, obtain an affidavit directly from those with firsthand knowledge".[2] A failure in these duties does not necessarily invalidate the warrant.[3]

The authorizing justice's job is to "determine whether there are reasonable grounds to believe that the articles in question will afford evidence with respect to the offence". This suggests only that the evidence "which would be relevant to the issue, and would be properly tendered as evidence in a prosecution" of the offence.[4]

The need for a judicial authorization aims to prevent unreasonable searches. A judicial officer may independently weigh the conflicting interests of the private individual and the state's interest to investigate.[5]

Establishing "credibly based probability" in an ITO requires it include:[6]

  1. sworn evidence sufficient to establish reasonable grounds for believing the offence had 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[7]
  2. that it 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."[8]
  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[9]

It is not necessary that the police demonstrate that the evidence sought will be sufficient to prove the offence.[10]


  1. R v Knight, 2008 NLCA 67 (CanLII) leave refused at para 32 ("It is the role of the police submitting the Affidavit to provide the factual foundation for issuance of the warrant")
  2. Fan, supra at para 15 citing Araujo at paras 46-49
  3. See Judicial Authorization Standard of Review
  4. R v Worrall, 1964 CanLII 161 (ON CA) per Porter CJO
  5. R v Fan, 2013 BCSC 445 (CanLII) at para 14 ("The process of prior authorization ... provides an opportunity to assess and weigh the conflicting interests of the state and the individual in order to ensure that an individual’s right to privacy is breached only when the interests of the state are demonstrably superior.")
  6. R v Morris, 1998 CanLII 1344 (NS CA), (1998), 173 N.S.R. (2d) 1 (C.A.) at para 31
  7. Sanchez, supra, at p. 365
  8. Sanchez, supra, at p. 364
  9. R v Yorke 1992 CanLII 2521 (NS CA), (1992), 115 N.S.R. (2d) 426 (C.A.) affd 1993 CanLII 83 (SCC), [1993] 3 SCR 647
  10. R v T.K., 2013 MBQB 114 (CanLII) at para 11
    Worrall, supra

Basic Elements

The base requirements of an ITO include facts establishing grounds of belief for:[1]

  • the existence of thing to be searched for;
  • the location of the thing to be searched for;
  • the location of search is a building, receptacle or place;
  • the building, receptacle or place is present at location;
  • the offence alleged has been (or suspected of being) committed as described; and
  • the thing to be searched for affords evidence of the commission of the offence or possession of the thing is an offence itself.

The evidence within the ITO must permit the officer to form reasonable and probable grounds. The affiant must specify their reasonable grounds within the ITO.

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”. [2]

The ITO must specify a particular offence that is being investigated.[3] As well, it must not simply include "conclusory" statements but rather the factual grounds for the conclusions.[4] A conclusory statement is "where an affiant states their belief but none of the underlying facts, thereby preventing an objective assessment of the affiant’s belief".[5]

Facial Validity
The date, place and time of the authorization must be present on the warrant to be valid.[6]

An unsigned affidavit supporting a wiretap warrant is not necessarily fatal to the application.[7]

Drafting Quality
Given that ITOs are drafted by police officer typically before all the evidence is known or without legal advice, the ITO need not have the level of quality of pleadings.[8] Officer’s generally speaking are not held to the same drafting quality as counsel.[9]

An ITO should be written and read in a practical, non-technical, common-sense fashion.[10]

Inquiry by Justice
A justice has no obligation to make inquiry of the affiant into the grounds of his belief.[11]

Organization and Length
A issuing judge or justice is entitled to reject an ITO on the basis of it being too lengthy and disorganized.[12] However, as a reviewing judge, there is no rule against lengthy ITOs or simply poorly drafted ITOs. The test should always come back to the question of whether it contains sufficient grounds [13]

Standard of Proof
The standard of proof to establish reasonable grounds or "reasonable belief" in support of a search warrant is one of "reasonable probability".[14]

  1. R v Chhan, 1996 CanLII 7025 (SK QB) per Hill J. - lists 5 requirements
    R v Turcotte, 1987 CanLII 984(SK CA) at p. 14
    R v Adams, 2004 CanLII 12093 (NL PC) at para 24
  2. C.B.C. v A.-G. for New Brunswick, 1991 CanLII 50 (SCC), (1991), 67 CCC (3d) 544 (S.C.C.), at p. 562
    R v Araujo 2000 SCC 65 (CanLII), (2000), 149 CCC (3d) 449 (S.C.C.), at p. 470;
    R v Ling 2009 BCCA 70 (CanLII), (2009), 241 CCC (3d) 409 (BCCA), at para 43 (leave to appeal refused, [2009] S.C.C.A. No. 165)
  3. R v Dombrowski, 1985 CanLII 182 (SK CA), (1985) 18 CCC 164
  4. R v Stockton Financial Services Co. (1990) 60 CCC 527 (Man CA), 1990 CanLII 10950 (MB CA)
    R v Harris, 1987 CanLII 181 (ON CA), (1987) 35 CCC 1 (Ont.CA)
  5. R v Pilkington (No. 1), 2013 MBQB 79 (CanLII) at para 54
  6. see 487.1
    related R v Steeves, 2002 BCSC 551 (CanLII) at para 57 to 62
  7. R v Dixon, 2012 ONSC 181 (CanLII)
  8. R v Sanchez, 1994 CanLII 5271 (ON SC), [1994] O.J. No. 2260 (S.C.J.), at para 20
  9. Re Lubell and the Queen (1973), 11 CCC (2d) 188 (Ont. H.C.), 1973 CanLII 1488 (ON SC), at p.190
    Durling, supra at para 19
    Sanchez, supra at p. 364
    Re Chapman and the Queen, (1983), 6 CCC (3d) 296 (Ont. H.C.), 1983 CanLII 3587 (ON SC), at p. 297
    Re Times Square Book Store and R. (1985), 1985 CanLII 170 (ON CA), 17 C.R.R. 180, 21 CCC (3d) 503 per Cory JA ("However, the warrant (and I infer from the heading immediately preceding this quote that he is also speaking of the information in support) need not be drafted with legal precision as it is an instrument for the investigation of crime. A reasonable latitude must be granted when considering its wording.")
  10. R v Whitaker, 2008 BCCA 174 (CanLII) at paras 41-42
  11. R v Donaldson, 1990 CanLII 630 (BC CA)
  12. Re Criminal Code, [1997] O.J. No. 4393 (Gen. Div.)(*no CanLII links) at paras 9 to 11
  13. R v Rafferty, 2012 ONSC 703 (CanLII) at para 34
  14. R v Debot, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140 at p. 1166

Inferences

It is not necessary that the officer spell out all possible reasons that they want to rely upon for seizing certain evidence. A judge may infer the reasons based on the evidence given in the ITO.[1]

A Justice is entitled to draw reasonable inferences from the ITO.[2]

  1. R v Vu, 2013 SCC 60 (CanLII) at paras 13 to 16
  2. See R v Durling, 2006 NSCA 124 (CanLII) at paras 27-28
    Vu, supra at para 16

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.[1] This obligation arises due to the ex parte nature of the application.[2] And applies to all warrants, including wiretaps.[3]

A failure to satisfy the affiant's duty to be full, fair and frank in its disclosure in the ITO may be a breach of s. 8 of the Charter.[4]

A flagrant, deliberate, or wilfully blind failure to make full and complete disclosure can be fatal to the warrant.[5]

The police must give full and frank disclosure so that the authorizing justice can decide in a "neutral and impartial manner".[6]

The ITO does not need to state every step a police officer takes in obtaining information.[7]

This does not require disclosing every fact that might possibly be relevant.[8] It should only be those that are "material facts".[9]

It is also generally not necessary to include in the ITO the absence of any other potentially relevant observations.[10]

The ITO cannot rely on "broad generalizations about loosely defined classes of people". It would invite reliance on "stereotypes and prejudices" instead of evidence.[11]

Lack of good faith in the contents of the ITO may invalidate it.[12]

The ITO must be sure to disclose any "prior association or personal connection" between the informer and the target of the search.[13]

Full and frank disclosure requires that the officer include "what the police believe they can prove at the time of the warrant."It does not include the requirement to reveal "all of their suspicions about the accused".[14]

The justice is entitled to draw reasonable inference from the facts set out in the ITO.[15] It is not necessary that the affiant spell out all inferences they are relying upon.[16]

Experience of Officer
The officer's experience is relevant to the investigative narrative.[17] Training and experience permits an officer to draw inferences and make deductions not otherwise available to a lay person.[18]

  1. R v Moore 1993 CanLII 17 (BC CA), (1993), 81 CCC (3d) 161 (BCCA) aff'd on appeal
    R v Brown, 2008 ABQB 663 (CanLII), at para 50, 64
    R v Kensington Income Tax, [1917] 1 K.B. 486 (C.A.)
    Church of Scientology and The Queen (No. 6), Re, 1987 CanLII 122 (ON CA)
    United States of America v Friedland, 1996 CanLII 8213 (ON SC), [1996] O.J. No. 4399 (Gen.Div.), at paras 26-29
    R v Araujo, 2000 SCC 65 (CanLII) at para 46
    R v Nguyen, 2011 ONCA 465 (CanLII), at para 48
  2. Araujo, supra at para 46-47
  3. R v Ling, 2009 BCCA 70 (CanLII) at paras 31 to 32
  4. R v Rocha, 2012 ONCA 707 (CanLII)
    R v White, 2017 ONSC 5647 (CanLII), at para 33
  5. R v Duncan (W.), 2004 MBCA 64 (CanLII) at para 32
  6. R v Ling, 2009 BCCA 70 (CanLII) at para 40
  7. R v Sanchez, 1994 CanLII 5271 (ON SC), (1994), 93 CCC (3d) 357 (Ont. Ct. Gen. Div.) at para 20
  8. R v Chambers 1983 CanLII 245 (BC CA), (1983), 9 CCC (3d) 132 (BCCA) at p. 143 aff'd 1986 CanLII 22 (SCC), (1986), 26 CCC (3d) 353 (S.C.C.)
    R v Concepcion, 1994 CanLII 1746 (BC CA), (1994), 48 BCAC 44 (B.C.C.A)
  9. Araujo at para 46
  10. e.g. R v Nguyen, 2011 ONCA 465 (CanLII) - CA overturns decision to invalidate warrant for failing to mention lack of suspicious activity in front of grow-up house
  11. Morelli at para 79
  12. e.g. R v Ling
  13. R v Morley, 2013 BCSC 463 (CanLII), at para 50
  14. R v Brown at para 64
    R v Middleton, 2000 BCCA 660 (CanLII) at para 18, 19
  15. R v Schiers, 2003 NSCA 138 (CanLII) at para 15
    R v Durling, 2006 NSCA 124 (CanLII) at para 20, 27
    R v Jackson 1983 CanLII 244 (BCCA) at p. 131
    R v Sanchez, 1994 CanLII 5271 (ONSC) at p. 365, 370
    R v Church of Scientology, 1987 CanLII 122 (ONCA) at p. 514 to 515
  16. Re Lubell, at p. 190
  17. R v Ngo, 2011 ONSC 6676 (CanLII) at para 35(4)
    R v Cunsolo, 2008 CanLII 48640 (ON SC), [2008] OJ NO 3754
  18. R v Jacques and Mitchell, 1996 CanLII 174 (SCC) at p 12
    R v Lawes, 2007 ONCA 10 (CanLII) at para 4
    R v Simpson 1993 CanLII 3379 (ONCA) at p. 501
    R v Juan, 2007 BCCA 351 (CanLII) at para 19
    R v Tran, 2007 BCCA 491 (CanLII) at para 12
    R v Mouland, 2008 SKCA 105(*no CanLII links) at para 26 to 27
    R v Ingle, 2007 BCCA 445 (CanLII), [2007] BCJ No 2024 at para 53
    R v Rajaratnam, 2006 ABCA 333 (CanLII) at p. 559
    R v Grotheim, 2001 SKCA 116 (CanLII) at para 30

Rule Against Narrative (Source Citation)

The drafting of an ITO cannot violate what is known as the "rule against narrative". This rule prohibits the drafter from citing any fact that has not been sourced from evidence that is identified within the ITO.[1]

  1. Re Criminal Code [1997] O.J. No. 4393(*no CanLII links) at para 8 ("...any factual assertion by the applicant within the four corners of the affidavit must be sourced to some investigative resource. Otherwise, the applicant breaches what is sometimes referred to as the rule against narrative. It is insufficient for an applicant to simply state conclusions, opinions and facts without providing the court with the source or origin for such conclusions, opinions or facts. The credibility and reliability of the assertions are inextricably linked to the investigative resources themselves.")

Description of the Location to be Searched

See also: General Warrants#Content of Warrant

Precision is necessary in the identification of the place to be searched. Vagueness can lead to searches of the wrong location and can lead to abuse.[1]

The ITO must sufficiently describe the location to be searched.[2] The description should be appropriate "description should be appropriate to the nature of the locus in question".[3]

  1. R v Wisdom, 2012 ONCJ 54 (CanLII) at para 45
    Fontana, "The Law of Search and Seizure" (8th ed.) at p.87 (“the search warrant process is location-critical and a high degree of precision is expected in both the supporting documents and the warrant itself...Vagueness in the description of premises invites, as a consequence, mistaken searches of wrong places or premises or innocent premises and remedial consequences under the Canadian Charter of Rights and Freedoms”)
  2. R v Parent, 1989 CanLII 217 (YK CA)
  3. Fontana

Motor Vehicles

A motor vehicle can be both a location to be searched as well as the actual thing to be searched for.[1]

  1. R v Rafferty, 2012 ONSC 703 (CanLII) at para 43

Residences

A warrant to search a residence should be appropriate for the context. A single family home should include municipal address, including number, street, town or city.[1]

A warrant authorizing the search of a dwelling-house will generally not include motor vehicles, particularly where the ITO does not address the existence and relevance of the motor vehicle.[2]

For a search of an apartment building, the warrant must specify the unit number.[3]

A warrant is still valid where the address is wrong or vague in one section of the ITO but valid in another section.[4]

Where the ITO is inconsistent with the warrant some level of error is permissible as long as the location remains sufficient clear.[5]

It is possible for a single ITO and warrant to describe and authorize several premises.[6]

  1. Fontana at p. 87
  2. R v Vu, 2004 BCCA 230 (CanLII)
  3. R v Wisdom, 2012 ONCJ 54 (CanLII) at para 44 ("The warrant fails to specifically authorize a search of apartment 303 which is where the applicants resided")
  4. R v Sexton, 2011 NBCA 97 (CanLII) at paras 4-9
  5. R v Parker, 2006 NBPC 38 (CanLII) - address on warrant varied from address in ITO. ITO address was correct. Warrant found valid.
    R v Jacobson, 2009 ONCA 130 (CanLII) - correct address in ITO, error in warrant address. Warrant valid to search car only, lower expectation of privacy in car
  6. R v N.M., 2007 CanLII 31570 (ON SC) at para 363 per Hill J.

Description of Thing(s) to be Searched For

The warrant's description of things to be seized "operates as a guide for the officers conducting the search."[1]

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.[2]

Generally, an approving justice should be satisfied that:[3]

  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.

It has been recommended the following principles be considered:[4]

  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.

The main question the reviewing judge must ask is, upon reviewing the ITO and the warrant "whether either the officers conducting the search or the Applicants whose premises were being searched would have any reasonable doubt about the things being searched for or the offences alleged to have been committed."[5]

A motor vehicle can be both a location to be searched as well as the actual thing to be searched for.[6]

See also R v Solloway and Mills (1930), 24 Alta.L.R. 410 (Alta. S.C.A.D.), 1930 CanLII 487 (AB CA).

  1. R v Du, 2004 ABQB 849 (CanLII) at para 12
  2. Du at para 12
  3. R v Adams 2004 CanLII 12093 (NL PC) at para 24
  4. Du at para 12
    See also see R v Church of Scientology, 1987 CanLII 122 (ON CA)
    Re: Lubell and The Queen (1973), 11 CCC (2d) 188 (Ont. H.C.J.), 1973 CanLII 1488 (ON SC)
    R v Silverstar Energy Inc., 2004 BCSC 1115 (CanLII), [2004] BCJ No. 1767 (B.C.S.C.)
    R v Sanchez and Sanchez, 1994 CanLII 5271 (ON SC), 1994 CanLII 5271 (ON SC), (1994), 93 CCC (3d) 357 (Ont. Ct. Gen. Div.)
    R v PSI Mind Development Institute Ltd. (1977), 37 CCC (2d) 263 (Ont. H.C.), 1977 CanLII 2013 (ON SC)
  5. Du, supra at para 13
  6. R v Rafferty, 2012 ONSC 703 (CanLII) at para 43

Description of Offence(s) Being Investigated

An ITO must set out "a clear description of the offence being investigated". A lack of description will invalidate a warrant.[1] It is not necessary that the description set out the specific charge or be of quality for pleadings at trial.[2]

It is not necessary that the ITO be as specific in the offence as the wording in the indictment.[3]

The authorizing justice need not be satisfied that the offence was committed or that the items seized will afford evidence in proving the offence. The justice need only be satisfied that there are reasonable grounds for believing that the items can be of assistance to establishing the commission of the offence and that they are in the premises to be searched.[4]

The ITO must also set out the evidentiary basis that makes out the offence.[5]

Evidence supporting a charge of accessing child pornography cannot support a warrant based on an investigation for possessing child pornography. [6]

It is not necessary that the suspect be named. It is enough to say "unknown persons".[7]

  1. R v Anderson and Slater, 2012 BCPC 496 (CanLII) at para 37
    R v Branton, 2001 CanLII 8535 (ON CA) at para 35 to 37 - simply stating the act without mention of the specific offence is not enough
  2. Anderson and Slater at para 37
    R v Times Square Book Store, 1985 CanLII 170 (ON CA), (1985), 21 CCC (3d) 503, p. 512
  3. R v Royal American Shows Incorporated, 1975 CanLII 260 (AB QB)
  4. R v Kent, 1993 CanLII 3231 (NS CA)
    c.f. R v Lemon, [2004] O.J. No. 6043 (Ont. S.C.)(*no CanLII links)
  5. Capostinsky v Olsen, 1981 CanLII 643 (BC SC) - warrant quashed due to conclusory statement by officer that BAC level was over 0.08 R v Cunsolo, 2008 CanLII 51468 (ON SC) at para 73 - ITO must describe how fraud was committed
  6. R v Morelli 2010 SCC 8 (CanLII), [2010] 1 SCR 253 at paras 13-38
  7. R v Sanchez, 1994 CanLII 5271 (ON SC) ("in the instance of the crime of conspiracy such identification constitutes a significant investigative challenge ...The offence is not infrequently investigated, for some dura­tion, as committed by "a person or persons at present unknown"."

Connecting the Thing to the Location

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.[1]

The affiant must establish a link between the believed committed offences as well as any evidence of the offence and the belief that it will be found on the premises.[2]

The informant must pledge that the items not simply "could" be found but would be found. [3]

Rooming House
All rooms within a rooming house has the same level of privacy as a single residence.[4] An ITO proposing to search several units within a multi-unit dwelling should "clearly [set] out reasonable and probable grounds for each unit to be searched".[5]

  1. R v Turcotte, 1987 CanLII 984 (SK CA), (1987), 39 CCC (3d) 193 (Sask.C.A)
  2. e.g. R v Davis, 2012 ABPC 125 (CanLII) at para 26
    e.g. R v Morse, 2006 CanLII 63690 (ON SC)
    R v Turcotte, 1987 CanLII 984 (SK CA), (1987), 39 CCC (3d) 193 (Sask.C.A)
  3. R v Kelly 2010 NBCA 89 (CanLII) at para 39
  4. R v Campbell, [2011] 2 SCR 549, 2011 SCC 32 (CanLII), at para 15
  5. Campbell, at para 15

Time Limitation on the Search

There should be a specified or inferred time period in which the search is to be conducted.[1] There is some suggestion that it should not be fatal.[2]

Where there is an absence of a specific statement of the date of execution, it may be inferred that the execution date was the same as the signing date.[3]

  1. R v Du, 2004 ABQB 849 (CanLII) - warrant quashed for failing to set time range of search
  2. R v Jones, 2011 ONCA 632 (CanLII)
  3. R v Rafferty, 2012 ONSC 703 (CanLII) at para 23

Reliability of Information Within the ITO

Information such as references to previously dismissed charges are irrelevant and should not be included in an ITO. They may be misleading and suggest an unfair propensity.[1]

  1. R v King (No. 4), 2016 CanLII 88801 (NL SCTD) at para 30
    R v Nguyen, 2011 ONSC 2187 (CanLII) at para 11

Currency of Information

It is essential that the affiant provide some detail on the recency of the information he is relying upon. An ITO without any detail on timing will be void.[1]

The age of the information will be a factor in considering whether reasonable grounds still exist. There is no fixed amount of time that renders it "stale".[2]

Even "stale" or "dated" information may be used in an ITO.[3]

The timing should be specific for the context. Simply saying that the suspect was seen near the location of the crime "several hour" ago is not sufficient.[4]

Child Pornography
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.[5]

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”." Generally, dated information on the presence of child pornography can be relied upon as those who collect such materials are known to keep it for a long period of time. [6]

A computer previously identified as being in the home would reasonably be inferred to still be present at the same location absent evidence suggesting otherwise.[7]

  1. R v Hosie, 1996 CanLII 450 (ON CA)
  2. R v Ballendine, 2011 BCCA 221 (CanLII) at para 54
  3. Regina v Brown, 2007 BCPC 448 (CanLII) at para 65
  4. R v Carroll, 1989 CanLII 206 (NS CA)
  5. R v Ward, 2012 ONCA 660 (CanLII) at para 114 ("...extensive technical evidence to the effect that files downloaded by the appellant on the computer could be recovered by police technicians even if the appellant had made efforts to delete those files. This evidence offered some basis for an inference that the prohibited material remained on the computer long after it was downloaded and could be recovered if the police were given access to the computer")
    R v Brown, 2007 BCPC 448 (CanLII) at para 82
  6. Ward at para 115
    R v Neveu, 2005 NSPC 51 (CanLII) at para 18
    R v Wonitowy, 2010 SKQB 346 (CanLII) at paras 37 to 50
    Brown, supra at para 82
  7. R v Stemberger, 2012 ONCJ 31 (CanLII) at para 99

Cross-Examination of Affiant

The accused may only cross-examine an officer who sworn an affidavit to obtain a search warrant with leave of the court. Leave should be granted where it would assist in the determination of whether there is a basis upon which the authorizing judge could have granted the order.[1]

Standard for Leave to Cross-Examine
The applicant must show the basis of that the examination "will elicit testimony tending to discredit the existence of one of the pre-conditions".[2]

Dangers of allowing cross-examination of an affiant include the prolixity and slowing down of the proceedings.[3]

Getting Behind a "Strawman" Affiant
There is some right to cross-examine sub-affiant (ie. the first-hand source of information attested to by the affiant) where the affiant is largely relying upon the hearsay evidence of others.

  1. Salhany, Canadian Criminal Procedure, Sixth Edition, at 3.1880
    see also: R v Parsons, 2012 CanLII 42275 (NL SCTD) - leave refused
  2. R v Garofoli, [1990] 2 SCR 1421, 1990 CanLII 52 (SCC)
  3. R v Pires and Lising, [2005] 3 SCR 343, 2005 SCC 66 (CanLII) at paras 33 and 34

Credibility and Reliability of Source

See also: Confidential Informers

A source who gives fraudulent or deliberately misleading information does not automatically invalidate the warrant.[1] However, if on review the information is sufficiently "subversive", then the warrant should be invalidated. The offending materials should also be excised from the ITO.[2]

  1. R v Morris (W.R.), 1998 CanLII 1344 (NS CA), (1998), 173 N.S.R. (2d) 1 (C.A.) at para 91
    R v Evans (E.D.), 2014 MBCA 44 (CanLII), at para 17
  2. Morris, supra at para 91

Relying on Redacted ITOs

See also: Confidential Informers

Where a challenged ITO has been redacted to an extent that the unredacted information is insufficient to support the issuance of the warrant, the Crown can invoke "step six of Garofoli" which permits them to rely on a vetted summary of redacted information.[1] The summary is vetted by the judge and then provided to defence counsel.[2] The summary must provide sufficient detail as to permit full answer and defence.[3]

  1. R v Reid, 2016 ONCA 524 (CanLII) at para 19
  2. Reid, ibid. at para 19
  3. e.g. Reid

Procedure in Drafting Warrant

Crown Role in Drafting ITOs
A Crown should assist in pointing out "flaws, inconsistencies, or ambiguities" in the ITO they should not engage in the "wholesale review of the file". This would otherwise "blur the line" between the two roles.[1]

Retaining Early Drafts
There is no constitutional obligation to retain early drafts of an ITO. [2]

  1. R v Ebanks, 2009 ONCA 851 (CanLII) at para 49
  2. R v Croft, 2014 ABQB 23 (CanLII)

See Also

Confidential Informers

General Principles

Police will often rely upon confidential informers to form their grounds to affect a warrantless arrest or for the issuance of a judicial authorization such as a search warrant. These are most pervasively seen in dealings related to drugs and organized crime where confidential communications are so often shared to persons who may have an interest in revealing it to police officers.

Information from a confidential informer is only admissible where the defence challenges the grounds of a search, seizure, or arrest, otherwise it is not relevant.[1]

A "tip" from an anonymous or confidential source can be used to form the grounds of arrest or search. The "tip" must be considered based on: [2]

  1. the degree of detail provided;
  2. the informant's source of information;
  3. the informant's prior reliability.

This test was previously stated as the "Debot" test requiring the three "C"s:[3]

  1. was the information predicting the commission of a criminal offence "compelling"?
  2. where that information was based on a "tip" originating from a source outside the police, was that source "credible"?
  3. was the information "corroborated" by police investigation prior to making the decision to conduct the search?

All these factors are to be balanced together in the "totality of the circumstances" to determine if the evidence meets "the standard of reasonableness".[4]

An anonymous tip generally is not sufficient.[5] Inquiry must be made into the three Garofoli factors to determine whether it can be reasonably relied upon.[6]

The test remains the same whether considering a warrantless search or a warrant such as a wire-tap.[7]

Hearsay from the informant can be sufficient.[8]

The law must maintain a "distinction between acting on a tip from a reliable source and acting on a tip from an unproven source".[9] Where reliability is unknown, "a relatively thorough investigation is essential" in order to provide corroboration.[10]

Consideration of the reliability of the information must be at the time of the warrantless search or application for a warrant. It cannot be considered ex post facto from the results of the search.[11]

Detail
The purpose of considering the level of detail is to "ensure that it is based on more than mere rumour or gossip"[12]

Source
It is insufficient to rely on conclusory statements without any information on the "source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance"[13]

Corroboration
Confirmation of the criminal aspects of a tip is important in cases such as where the tip is anonymous.[14]

Where there is no corroboration or confirmation, the reliability of the source is the essential issue.[15]

  1. R v Graham, 2013 BCCA 75 (CanLII) at para 15
    R v Jir, 2010 BCCA 497 (CanLII) at para 8
  2. R v Warford (2001), 161 CCC 309, 2001 NFCA 64 (CanLII)
    R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 at para 68
  3. R v Debot, [1989] S.C.J. No. 118 1989 CanLII 13 at p. 218-219
  4. R v Debot
    Garofoli, supra at para 68, 82 to 83
    Araujo, supra at para 54
  5. R v Bennett (1996) 108 CCC 175, 1996 CanLII 6344 (QC CA)
  6. Debot, supra at p. 1168
    R v Plant, 1993 CanLII 70 (SCC) at para 35
  7. R v Garofoli at para 68 ("I see no difference between evidence of reliability of an informant tendered to establish reasonable and probable grounds to justify a warrantless search ... and evidence of reliability of an informant tendered to establish similar grounds in respect of a wiretap authorization.")
  8. R v Garofoli at para 68
  9. R v Philpott, [2002] O.T.C. 990, 2002 CanLII 25164 at para 161
  10. Philpott at para 162
  11. Garofoli, supra at para 68
  12. R v Greffe, 1990 CanLII 143 (SCC), [1990] 1 SCR 755
  13. Greffe
    see also R v Debot, 1986 CanLII 113, (1986), 30 CCC (3d) 207 (Ont. C.A.) per Martin JA at p.218 ("The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged. I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds")
  14. see R v Campbell, 2003 MBCA 76 (CanLII) at par. 27
  15. R v Maton, 2005 BCSC 330 (CanLII) at para 45
    R v Pippin 1994 CanLII 4659 (SK CA)
    R v Cheecham, 1989 CanLII 5129 (SK CA), (1989), 51 CCC (3d) 498 (Sask. C.A.)
    R v Duther, 2002 NBPC 4(*no CanLII links)
    R v Duncan 2004 MBCA 64 (CanLII)

Level of Detail

  • Consider:
    • Length of discussions with informer
    • Amount of information known of accused (by name or description)?
    • Did information include the location of criminal offence?
    • did information include nature and quality of drugs?
    • did information include the nature of the deal?

In a drug trafficking case, details that should often be considered include:[1]

  • type of drug observed, the amount of drug present, and how informer would have known;
  • location within the residence in which the drug was observed or stored;
  • observations regarding indicia of intent to offer for resale;
  • recency of observations; and
  • location of sources at time of observation, whether it was made inside or outside.
  1. e.g. see R v Morris, 1998 CanLII 1344 (NS CA), (1998), 173 N.S.R. (2d) 1, [1998] NSJ No. 492 (CA)
    and R v MacDonald, 2014 NSSC 218 (CanLII), at para 51

Corroboration

It is important that the corroboration relating to details of the offence not simply be neutral facts of a non-criminal nature.[1]

There is nothing wrong with having two informers cross-corroborate each other in assessing whether sufficient grounds exist.[2]

Where the level of detail is low and where credibility cannot be assessed, the obligation on corroboration increases.[3]

Where the reliability of the source is unknown, corroboration is "particularly important". There must be sufficient corroboration "to remove the possibility of innocent coincidence".[4]

Often evidence from surveillance or other investigative tools will corroborate the informer. [5]

  1. e.g. R v Caissey, 2007 ABCA 380 (CanLII) per Martin JA (dissent) at para 38
  2. R v Evans (E.D.), 2014 MBCA 44 (CanLII), at para 14
  3. R v Debot, [1989] 2 SCR 1140, 1989 CanLII 13 (SCC)
  4. R v Philpott, 2002 CanLII 25164 (ONSC) at para 159
  5. R v Izzard 2014 CarswellOnt 3409, 2014 ONSC 1821 (CanLII), at para 64

Reliability and Credibility

  • Past reliability:[1]
    • Length of time known
    • Frequency of contact
    • # of times paid (before / after incident)
    • # of valid search warrants based on his information
    • Had searches resulted in seizure of drugs/monies/weapons (If so, in what amount?)
    • Had information resulted in convictions?
    • # of negative, false or inaccurate information?
    • # of cases resulted in dismissed/acquitted/withdrawn
  • Credibility of Informer
    • Did they have pending charges at the time?
    • Non-conclusory information
    • Did thye have a criminal record? For offences of dishonesty? If so, how many, and how long ago?
  • Informers source of knowledge
    • 1st, 2nd or 3rd hand information? (3rd degree is as good as anonymous)
    • Freshness of the information

Criminal Record
An informer with a criminal record is quite frequent and expected. The presence of a record should not necessarily negate the value of the information.[2] However, offences such as perjury will likely have an impact on their credibility. [3]

Motivation
There are a variety of motives to be an informant, including.[4]

  1. Fear such as the threat of incarceration;
  2. Revenge;
  3. Perverse motivation;
  4. Egotistical motivation;
  5. Mercenary motivation such as the receipt of money.
  1. Garofoli - emphasizes past reliability
  2. Robertson c. Mohawk Council of Kahnawake, 2010 QCCS 355 (CanLII) at para 29
  3. R v Pelley, 2002 CanLII 20132 (NL PC) at para 21
  4. R v Franko, 2012 ABQB 282 at para 31

Disclosure of Handler Notes

"Source Handler Notes" (SHR) or "Source Debriefing Notes" (SDR) are records made by source handlers recording their interactions with their designated sources.

SDR and SHR are only disclosable under what is known as a "McKay Order".[1]

Simply classifying materials as "handler notes" does not necessarily afford them the protection of informer privilege.[2]

The burden is upon the accused to demonstrate "that there is a reasonable likelihood that the requested materials will assist the court in the determination of the application".[3]

SHN are "first party disclosure, unless those reports concern only general information unrelated to a particular accused and investigation[4]

SHN/SDNs that were not read by a affiant in swearing are prima facie irrelevant.[5]They may only be disclosed if established as "likely relevant" and are not privileged.[6]

"Sufficient reliability is established, or is not established, by reference to the material filed in support of an application for an authorization"[7]

The defence are not permitted to cross-examine a source handler without first making a "Dawson application".[8]

  1. R v Robertson, 2016 BCSC 2075 (CanLII) at para 4
  2. R v Way, 2014 NSSC 180 (CanLII)
  3. R v McKenzie, 2016 ONSC 242 (CanLII), at para 39
    Way, at paras 51, 59, 63, 75, 97
  4. R. v McKay, 2015 BCSC 1510 (CanLII), at paras 80 - 81 appealed to 2016 BCCA 391
  5. R v McKay, 2016 BCCA 391 (CanLII)
  6. McKay, ibid. at para 158
  7. R v Barzal, 1993 CanLII 867 (BCCA)
  8. R v Childs, 2016 ONCJ 690 (CanLII) at paras 3 and 4

See Also

Social Sciences

Search Warrant Evidence

General Principles

Communications with the justice
Any communications between the affiant and the authorizing justice cannot form part of the grounds to support the issuing of a warrant.[1]

  1. Re Worrall, 1964 CanLII 161 (ON CA), [1965] 2 CCCC 1, per Roach JA dissenting on another issue

First-hand Observations

Information supporting a warrant that is collected by civil trespass may not invalidate a warrant. An officer can include in the ITO observations made when entering into an apartment building without permission.[1] The same goes for entering into a commercial building without permission.[2] However, an officer may not rely on information gained by peering into windows of a building that they cannot enter.[3]

The public areas of apartment buildings, such as the lobby, hallways or corridors, despite being behind a security door, are public areas to those who have implied permission to enter when they are "buzzed in".[4] There is a diminished, if any, privacy in the hallway of an apartment building.[5]

See also Reasonable Expectation of Privacy

  1. R v Laurin, 1997 CanLII 775 (ON CA), per Morden ACJ
  2. R v Arason, 1992 CanLII 1008 (BC CA), per Cumming JA
  3. Laurin, supra
  4. R v Beune, 2005 BCPC 175 (CanLII), per Dhillon J at para 47
  5. R v Brar, 2008 MBQB 1 (CanLII), per MacInnes J at para 44 per MacInnes J

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. [1]

The statement cannot be involuntary.[2]

A statutorily compelled statement of the accused cannot be used for the purpose of an ITO.[3]

  1. R v Allen, 1995 ABCA 384 (CanLII), per Fraser CJ at para 5 per Fraser CJA
    R v Campbell, 2003 MBCA 76 (CanLII), per Scott CJ at para 49-51 per Scott CJM
    R v Sonne, 2012 ONSC 140 (CanLII), per Spies J at para 17 per Spies J
    R v LeBlanc, 2001 ABQB 721 (CanLII), per Moore J per Moore J
  2. R v Ye, 2011 ONSC 2278 (CanLII), per Quigley J at para 40
  3. R v Powers, 2006 BCCA 454 (CanLII), per Saunders JA leave denied [2006] SCCA No 452
    R v Soules, 2011 ONCA 429 (CanLII), per LaForme JA leave denied [2011] SCCA No 375, R v Scharf, 2013 SKQB 327 (CanLII), per Danyliuk J

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.[1]

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.[2]

There is no added value in including charges that have been stayed or withdrawn. The prejudicial effect is too great. [3]

  1. R v Johnston, 2009 ABPC 315 (CanLII), per Semenuk J at para 44
  2. R v Sismey, 1990 CanLII 1483 (BC CA), per Lambert JA
  3. R v Johnson 2005 BCPC 432 (CanLII), per RR Smith J at para 8

Hearsay

See also: Hearsay

The applicant should always indicate whether they are relying on hearsay or direct knowledge.[1]

An ITO relying upon hearsay does does not exclude it from establishing "probable cause".[2]

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. [3]

Details on the source should be used to distinguish the information from rumor or gossip.[4]

Where the hearsay source is not set out the part of the ITO may be defective.[5]

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.[6] It has been considered in appropriate to paraphrase or edit the notes of the other officers in materials ways.[7]

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.[8]

Whether the confidential informant was paid should be provided as well.[9]

Debot factors are to be applied when considering hearsay.

  1. e.g. see R v Nightingale, 2006 ABPC 79 (CanLII), per Creagh J at para 65 to 67 - officer failed to specify
  2. Eccles v Bourque, 1974 CanLII 191 (SCC), [1975] 2 SCR 739, per Dickson J at p. 746 ( "That this information was hearsay does not exclude it from establishing probable cause")
  3. R v KP, 2011 NUCJ 27 (CanLII), per Sharkey J at para 83
    see also R v Philpott, 2002 CanLII 25164 (ON SC), per Quinn J at para 40
    R v Bryan, 2008 CanLII 2595 (ON SC), per DM Smith J at para 81
  4. R v Allain, 1998 CanLII 12250 (NB CA), per Drapeau JA at pp. 12-13 ("As a rule, sources of hearsay information must be identified in the supporting Information. This rule is designed to enable the issuing judge to satisfy himself or herself that the information is more than rumour or gossip")
  5. R v Bui and Do, 2005 BCPC 210 (CanLII), per Jardine J at para 57
  6. Bui and Do at para 57
  7. R v Liang, Yeung, Zhu, Zhai, Wen, Zhou, Jiang, Cheung and Xu, 2007 YKTC 18 (CanLII), per Ruddy J
  8. Liang, ibid.
  9. Buid and Do, supra at para 57

Expert Evidence

See also: 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.[1]

Where the affiant is properly qualified as an expert within the ITO, the reviewing judge may not "independently verify" the opinion.[2]

Errors in Opinion
Where the expert evidence relies on faulty facts or he gives a faulty opinion. That portion of the ITO can excised out in voir dire.[3]

  1. Criminal Code s. 487.01, Application of General Warrant, 2002 SKPC 11 (CanLII), per Halderman J at paras 32 to 33
    R v Morelli, 2008 SKCA 62 (CanLII), per Hunter JA at para 122
    R v Agensys International Inc. 2004 CanLII 17920 (ON CA), (2004), 187 CCC (3d) 481, per Gillese JA at para 44
    R v Ward, 2012 ONCA 660 (CanLII), per Doherty JA at para 115
  2. R v Burke, 2013 ONCA 424 (CanLII)Template:PerWeiler JA at para 23
  3. R v Mercuri, 2004 CanLII 7053 (ON SC), per J deP Wright J

Credibility

See Confidential Informers

Reasonable and Probable Grounds

General Principles

See also: Reasonable Suspicion

The legal standard of "reasonable and probable grounds" is employed in many aspects of law enforcement. It is the threshold that a peace officer must satisfy before certain powers can be employed including arrest and searches.

This level of proof is the calibrated to where "the state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone".[1]

Credibility-based Standard
Reasonable and probable grounds is the “the point where credibly-based probability replaces suspicion".[2] It is the reasonable belief that "an event not unlikely to occur for reasons that rise above mere suspicion".[3] "Reasonableness" concerns the legitimate expectations in the existence of certain facts. It can then be said that the belief in certain facts can be "reasonable" without being "probable".[4]

Totality of Circumstances
The "totality of the circumstances" must be considered in the assessment of grounds.[5] The purpose of emphasizing the "totality of the circumstances" is to "avoid concentrating on individual pieces of evidence".[6] Accordingly, the considerations of the evidence cannot be "piecemeal".[7]

Totality requires that the officer consider "all incriminating and exonerating information", but may disregard unreliable evidence.[8]

The officer must consider context including timing involved, events leading formation of grounds, and the dynamics at play.[9] Reasonable grounds need not be based on first hand knowledge.[10]

The factors of consideration must be "flexible". Courts should not put one factor "to the status of an essential prerequisite" to establish grounds.[11]

Objectively Reasonable
The reasonableness requires that the grounds be justifiable from an objective point of view. A reasonable person placed in the position of the officer must be able to find that the grounds exist.[12]

Between Suspicion and Balance of Probabilities
The standard of reasonable grounds to believe is greater than reasonable suspicion but less than on a balance of probabilities when the totality of the circumstances are considered.[13] It is also greater than "[m]ere suspicion, conjecture, hypothesis or ‘fishing expeditions’".[14]

Contrast with BARD and Prima Facie Standard
It does not equate with "proof beyond a reasonable doubt" or to a "prima facie case".[15] It is not "proof absolute".[16]

Reasonable grounds is a standard lower than a prima facie case and is less than a balance of probabilities.[17]

Contrast to Reasonable Suspicion
It is higher than "reasonable suspicion"[18], which is where "a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation"[19]

Identical Standards
In more recent times the standard has also been called "reasonable grounds to believe"[20] , "reasonable belief"[21], "reasonable probability", and to a lesser extent "probable cause".[22] However, neither of these names have lasted.[23]

Constitutional Baseline
The Charter requires that any statutory provisions enabling search and seizure must be based on "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"[24] These requirements set out the "minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure".[25]

Reliability of Information
The officer weighing evidence to be relied upon when justifying a search or arrest must be satisfied that:[26]

  1. was the information ... compelling?
  2. if the information is based on a tip, was the source credible?
  3. was the information corroborated prior to the police action?

When Grounds May be Challenged
In most cases, the grounds underlying police authority can only be challenged by way of a Charter application. Absent the application, the sufficiency of grounds are presumed.[27]

Appellate Review
Whether the judge's factual findings amount to "reasonable and probable grounds" is a question of law and is reviewable on a standard of correctness.[28]

  1. Hunter v Southam, 1984 CanLII 33 (SCC), [1984] 2 SCR 145, at p. 167 (cited to SCR)
    R v Sanchez 1994 CanLII 5271 (ON SC), (1994), 93 CCC (3d) 357, at 367 (Ont.Ct. Gen.Div.) ("The appropriate standard of reasonable or credibly based probability envisions a practical, non-technical and common sense probability as to the existence of the facts and inferences asserted.")
    R v Ngo, 2011 ONSC 6676 (CanLII) at para 35
  2. Hunter v Southam, supra
    R v Phung, 2013 ABCA 63 (CanLII) at para 11
    R v Hosie, 1996 CanLII 450 (ON CA), [1996] O.J. No. 2175 (ONCA) at para 11
  3. R v Loewen [2011] 2 W.W.R. 15, 260 CCC (3d) 296 (Alta. C. A.) at para 18
    Mugesera, supra at para 114
    R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59 at paras 34, 41
    R v Hall, 1995 CanLII 647 (ON CA), (1995), 22 O.R. (3d) 289 (C.A.) at p. 298
    Baron v Canada, 1993 CanLII 154 (SCC), [1993] 1 SCR 416
  4. Loewen, supra at para 18
    n.b. which is also why certain cases use the term reasonable grounds rather than reasonable and probable grounds
  5. R v Debot, [1989] 2 SCR 1140, 1989 CanLII 13 (SCC), per Wilson J, at para 53 (" I concur with Martin J.A.'s view that the 'totality of the circumstances' must meet the standard of reasonableness. Weakness in one area may, to some extent, be compensated by strengths in the other two.")
    R v Garofoli, [1990] 2 SCR 1421, 1990 CanLII 52 (SCC) ("The reliability of the tip is to be assessed by recourse to the 'totality of the circumstances'. ")
  6. R v Slippery, 2014 SKCA 23 (CanLII), paras 21 to 22
    R v Skinkewski, 2012 SKCA 63 (CanLII) at para 13 ("a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal fashion")
    R v Savage, 2011 SKCA 65 (CanLII), 371 Sask. R. 283
    R v Nguyen, 2010 ABCA 146 (CanLII), 477 A.R. 39
  7. Skinkewski, supra at para 13
  8. Shinkewski, supra at para 13 ("an arresting officer must consider all incriminating and exonerating information which the circumstances reasonably permit, but may disregard information which the officer has reason to believe may be unreliable: R. v. Storrey;")
  9. Skinkewski, supra at para 13
    Nguyen, supra at para. 18
  10. R v Yorke, 1992 CanLII 2521 (NS CA), (1992), 115 N.S.R. (2d) 426 (C.A.); aff'd 1993 CanLII 83 (SCC), [1993] 3 SCR 647
  11. R v Parsley, 2016 NLCA 51 (CanLII), per Hoegg JA, at para 16
    R v Burke, 2011 NBCA 51 (CanLII)
  12. Storrey, supra at pp. 250-1
  13. R v Le 2006 BCCA 298 (CanLII) appealed to BCCA 463 (CanLII)
    Shinkewski, supra at para 13 ("an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities ... or a prima facie case for conviction (R. v. Storrey) before making the arrest; but an arresting officer must act on something more than a “reasonable suspicion” or a hunch")
  14. Sanchez, supra at para 31
  15. Ngo, supra at para 35
    R v Jacobson, 2006 CanLII 12292 (ONCA)
  16. Ngo at para 35
    R v Smith, 1998 ABCA 418 (CanLII) at p. 77
  17. see R v Debot 1986 CanLII 113 (ON CA), (1986), 17 O.A.C. 141, affirmed 1989 CanLII 13 (SCC), [1989] 2 SCR 1140 Storrey, supra at pp. 250-1 - prima facie case not necessary Loewen, supra at para 18
  18. Phung at para 11
  19. Phung at para 11
    R v Simpson, 1993 CanLII 3379 (ON CA), (1993), 12 OR (3d) 182 at 202
    R v Jacques, 1996 CanLII 174 (SCC), [1996] 3 SCR 312 at para 24
    Mann, supra at para 27
  20. Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 (CanLII) at para 114
    Baron v Canada at para 42 to 44 - discussion of the difference between "reasonable grounds to believe" vs "reasonable and probable grounds"
    R v Loewen, [2011] 2 SCR 167, SCC 21 (CanLII), at para 5
  21. R v Debot, [1989] 2 SCR 1140, 1989 CanLII 13 (SCC), at p. 213
  22. R v Law, 2002 BCCA 594 (CanLII) at para 3, 7
  23. e.g. R v Chehil, 2013 SCC 49 (CanLII)
  24. R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, para 39
    Hunter v Southam Inc., at p. 168
    See also R v Vella (1984) 14 CCC 513, 1984 CanLII 3607 (ON SC)
    R v Harris, 1987 CanLII 181 (ON CA)
  25. Hunter v Southam at p. 168
  26. Debot [1989] 2 SCR 1140, 1989 CanLII 13 (SCC) at p. 215
  27. See Charter Applications
  28. R v Dhillon, 2016 ONCA 308 (CanLII), at para 22
    R v Shepherd 2009 SCC 35 (CanLII), [2009] 2 SCR 527, 309 DLR (4th) 139 at para 18, 20 ("[w]hile there can be no doubt that the existence of reasonable and probable grounds is grounded in the 'factual findings' of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law")
    R v MacKenzie, 2013 SCC 50 (CanLII) at para 54
    R v Feeney, 1997 CanLII 342 (SCC) at paras 30, 33, 36
    R v Biccum, 2012 ABCA 80 (CanLII) at para 10
    R v Nicholson, 2011 ABCA 218 (CanLII) at para 14
    R v Mehari, 2011 ABCA 67 (CanLII) at paras 13-14
    R v Loewen, 2010 ABCA 255 (CanLII) at para 6, aff'd 2011 SCC 21
    R v Harding, 2010 ABCA 180 (CanLII) at paras 12-13
    R v Abdo, 2009 ABCA 340 (CanLII) at para 5
    R v Dill, 2009 ABCA 332 (CanLII) at para 4

A Context-Specific Standard

"Reasonable and probable grounds" will mean different things in different contexts.[1]

The standard will depend on the nature of the state interest and the individual's privacy interest being intruded upon. What is "reasonable" must be "flexible if it is to be realistic and meaningful".[2]

Whether the grounds exist is a "fact-specific determination in each case".[3] The ground must be "considered in their totality, not isolated out for independent evaluation".[4]

Fair Context
The officer must take into account both inculpatory as well as exculpatory evidence. Only evidence that is unreliable can be ignored.[5] The officer must make inquiry as the circumstances reasonably permit.[6]

Search Warrants
In the context of a warrant search, there must be “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”.[7]

  1. R v Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 SCR 254 (S.C.C.) at pp.304-6 per L'Heureux-Dube J.
  2. R v McKinlay Transport Ltd., [1990] 1 SCR 627, 1990 CanLII 137 (SCC)
  3. R v Ngo, 2011 ONSC 6676 (CanLII) at para 35
  4. Ngo at para 35
    R v Campbell, 2010 ONCA 588 (CanLII) at para 57 ("Considered independently each of these grounds may not have justified the authorization. However, a justice of the peace could have found from their cumulative effect that there were reasonable grounds to issue the warrant.")
    R v Nguyen, 2007 ONCA 24 (CanLII) at para 4 ("The cumulative effect of the information demonstrated the existence of reasonable and probable grounds to believe that a grow operation would be found inside the house")
  5. Chartier v Quebec (A.G.), [1979] 2 SCR 474 1979 CanLII 17
  6. R v Golub at para 21
  7. Hunter v Southam, 1984 CanLII 33 (SCC), [1984] 2 SCR 145, at p. 167 (cited to SCR)
    R v Campbell, 2011 SCC 32 (CanLII) at para 14

Subjective Factors

An officer must have a subjective belief that there are sufficient grounds.[1]

Experience, Training and Knowledge of Officer
The officer may use his training and experience in determining objective reasonableness.[2] For example, what may appear to be innocent objects to the general public may have a very different meaning to an officer experienced in drug operations[3] This objective standard while "standing in the shoes of the police officer" has been interpreted as taking into account the officer's experience and training.[4]

The subjective component does not require that the police officer specifically testify to having a subjective belief. It can be inferred based on the surrounding circumstances.[5]

Assessment of reasonableness requires that the judge places themselves "in the position of the officer" and assess "the circumstances through the lens of someone who has the same experience, training, knowledge and skills as the officer".[6]

Operating on Agency
The searching or arresting officer may rely upon the assumption that the officer directing them has the requisite grounds.[7]

Mistaken Belief vs Reality
In assessing the reasonableness, the judge must "measure the facts as the police officer honestly understood them to be".[8]

The subjective grounds must be based on a bona fides belief to a relevant fact. It is not necessary that the fact actually be true.[9]

  1. R v Shinkewski, 2012 SKCA 63 (CanLII), at para 13 ("an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be justifiable from an objective point of view - in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there were indeed reasonable grounds for the arrest")
  2. R v Biccum 2012 ABCA 80 (CanLII) at para 21
    R v Lawes, 2007 ONCA 10 (CanLII) at para 4
    R v MacKenzie, 2011 SKCA 64 (CanLII) at para 27, reserved (January 22, 2013) [2011] SCCA No. 359
    R v Wilson, 2012 BCCA 517 (CanLII) at paras 18-44
    R v Smith, 1998 ABCA 418 (CanLII), at para 30
    R v Sinclair, 2005 MBCA 41 (CanLII), at para 14
    R v Messina, 2013 BCCA 499 (CanLII) - officer's experience with dial-a-dope R v Navales 2011 ABQB 404 (CanLII)
    R v Acosta, 2014 BCCA 218 (CanLII)
  3. R v Rajaratnam, 2006 ABCA 333 (CanLII) at para 25
    R v Kluczny, 2005 ABQB 350 (CanLII), at para 51
  4. R v Juan, 2007 BCCA 351 (CanLII) at paras 27-28
  5. R v R.M.J.T., 2014 MBCA 36 (CanLII), at paras 56 to 58
    R v Jacob (J.A.), 2013 MBCA 29 (CanLII) at para 35
  6. Galye, supra at para 38 ("The assessment of whether objective grounds existed involves placing a reasonable person in the position of the officer and having that person assess the circumstances through the lens of someone who has the same experience, training, knowledge and skills as the officer. If that reasonable person would reach the same conclusion as the police officer, then the grounds for arrest will be considered to be objectively reasonable")
  7. R v Chervinski, 2013 ABQB 29 (CanLII) at paras 21 to 22
    Debot at para 50
  8. R v Slippery, 2014 SKCA 23 (CanLII) at para 32
  9. Eccles v Bourque, [1975] 2 SCR 739, 1974 CanLII 191

Objective Factors

The subjective believe must be reasonable.[1]

No Ex Post Facto Analysis
Evaluation of grounds is based on what facts the officer was aware of at the time. It not relevant whether the facts, circumstances or inferences made were infact true. It is only whether it was reasonable for the officer to believe that the officer's believed facts, circumstances and inferences were reasonable.[2]

Any evidence that comes to light after the formation of the grounds is not relevant.[3]

  1. R v Shinkewski, 2012 SKCA 63 (CanLII), at para 13 ("an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be justifiable from an objective point of view - in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there were indeed reasonable grounds for the arrest")
  2. R v Jacob (J.A.), 2013 MBCA 29 (CanLII) at para 35
    R v Slippery, 2014 SKCA 23 (CanLII)
  3. Slippery, ibid. - context of observing "post demand conduct" in an impaired driving investigation

Inferences

See also: Inferences

The Justice of the Peace may draw "reasonable inferences" from the information found in the ITO.[1]

"[R]easonable inference from the facts" can form the basis of reasonable and probable grounds.[2]

An officer may search for anything "relevant or rationally connected to the incident under investigation, the parties and their culpability, that gives rise to the authorized warrant.[3]

The standard remains the same for offences within the Code.[4]

The officer may rely upon the observed reactions of the suspect (including body movement, posture, etc) to the presence of police.[5]

Reliance odour alone can be problematic as the sense of smell can be "highly subjective".[6]

Judicial Notice
The justice of the peace may take "judicial notice of concrete local circumstances in assessing the adequacy of the officer’s statement."[7]

  1. See R v Durling, 2006 NSCA 124 (CanLII) at paras 20, 27-28
    R v Schiers, [2003] NSJ No. 453 (C.A.)(*no CanLII links) at para 15
    R v Jackson, at p. 131
    Re Lubell, at p. 190
    R v Sanchez, at p. 365, 370
    R v Church of Scientology (No. 6), at p. 514-5
  2. R v Jacobson, 2006 CanLII 12292 (ON CA), [2006] O.J. No. 1527 (Ont. C.A.), at para 22
  3. R v Cunsolo, 2008 CanLII 48640 (ON SC) at para 135
  4. R v Jacob (J.A.) at para 36
  5. R v Plummer, 2011 ONCA 350 (CanLII), [2011] O.J. No. 2034 (C.A.) at para 23 - referring to grounds of arrest
    R v Dene, 2010 ONCA 796 (CanLII), at para 4
  6. R v Polashek (1999) 45 OR (3d) 434 (ONCA), 1999 CanLII 3714 (ON CA), per Rosenberg JA
    R v Barclay, 2018 ONCA 114 (CanLII), per Hoy ACJO, at para 36
  7. R v Lacelle, 2013 ONCA 390 (CanLII) at para 6

Compared to Suspicion

See also: Reasonable Suspicion

Where the police cannot obtain evidence without violating the Charter-based only on suspicion, conjecture, hypothesis or a "fishing expedition".[1]

The belief that the accused "may" have used a cell phone is a form of speculation and is insufficient to rely upon for an ITO targeting the phone.[2]

  1. R v Kokesch, 1990 CanLII 55 (SCC), [1990] 3 SCR 3 ("Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally.")
    R v Sanchez, 1994 CanLII 5271 (ON SC)
    R v Mahmood, 2008 CanLII 51774 (ONSC)
  2. Mahmood, ibid.

In Arrest

In Search Warrants

See also: Judicial Authorization Standard of Review

Special Rules

Confidential Informers

See also: Confidential Informers

Where the basis of the warrant relies on a confidential informer, the requirement from R v Debot must be considered.[1] 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". [2]

On review of a search warrant the issue is whether the evidence might reasonably be believed, not whether there is some guarantee that the infromer was telling the truth about criminal activity.[3]

  1. R v Hosie, 1996 CanLII 450 (ON CA), [1996] O.J. No. 2175 (ONCA) at para 12
    See R v Debot, 1989 CanLII 13 (SCC), (1989), 52 CCC (3d) 193 at page 215 (S.C.C.)
  2. Debot, ibid. at page 218
  3. R v Caissey, 2007 ABCA 380 (CanLII), 299 DLR (4th) 432, at para 23, aff’d 2008 SCC 65 (CanLII), [2008] 3 SCR 451

Drunk Driving

Drug Trafficking and Possession

Where an unknown person makes a "furtive visit" that is short enough to suggest drug trafficking is going on, along with informant details that drugs are being sold out of the house, is enough to form grounds that the resident is in possession of drugs.[1]

Police cannot arrest a resident who answers the door of a marijuana grow operation without further grounds connecting the accused to the illegal activity. Please could have detained but not arrested.[2]

Evidence of a person leaving a property, by itself, "would not be sufficient to connect that person with the crime… Believed was being committed on the property”.[3] It follows that police cannot simply arrest everyone coming out of a residence believes to be a grow operation.[4]

In certain contexts, seeing an accused holding a cigarette with the palm facing the front of the cigarette can be used as evidence for reasonable grounds to believe he is smoking marijuana.[5]

  1. R v Charlton, 1992 CanLII 367 (BC CA)
  2. R v Orr, 2010 BCCA 513 (CanLII)
  3. R v Doak, 2008 BCSC 1359 (CanLII)
  4. R v Settle, 2010 BCCA 426 (CanLII)
  5. R v Safarzadeh-Markhali, 2014 ONCA 627 (CanLII)

Search Warrant Standard of Review

General Principles

Before a party can make such an application to exclude evidence collected by way of a search warrant, they must have standing, which requires that there be an established Reasonable Expectation of Privacy.

A "Garofoli Application" refers to the procedure for determining the validity of a judicial authorization.[1] This test applies equally to any motion to quash a court authorization.[2]

Test on Review
The base test for review of a search warrant is "whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge".[3]

This test contemplates whether the information found in the ITO by itself and "drawing reasonable inferences" could have been sufficient.[4]

A reviewing court may invalidate a warrant despite there being reasonable and probable grounds where it is for the purpose of protecting "the process and the preventative function it serves".[5] This is however a high threshold.[6]

When assessing the validity of the ITO the analysis must not elevate quibbles into substance.[7]

A warrant is to be evaluated based on what the investigators did do, not what the investigators could have done. A failure to take investigative steps is only relevant as it relates to whether the ITO discloses sufficient grounds to authorize the warrant.[8]

Where there is an application to quash a warrant and return seized items, it is proper that the police refrain from re-applying for a new search warrant. It is preferred that they wait until such time as the warrant is quashed and then re-apply.[9]

The analysis of a warrant and ITO should be on "the whole of the document, not a limited focus upon an isolated passage or paragraph". It should be a "common sense review not line-by-line word-by-word dissection"[10]

The applicant, in drafting the ITO, must "make full, frank and fair disclosure of all material facts in the ITO supporting the request".[11]The facts must be set out "truthfully, fully and plainly".[12] There must be "candour" and "accuracy".[13]

Appeal
An appeal of a trial judge decision reviewing a search warrant issued by a justice of the peace is to be reviewed for "whether the reviewing judge erred in law by interpreting and applying the standard to determine whether the issuing judge properly issued the warrant".[14]

  1. R v Scott, 2015 MBQB 87 (CanLII), per Edmond J, at para 8
  2. R v Vice Media Canada Inc., 2017 ONCA 231 (CanLII), per Doherty JA
  3. R v Araujo, 2000 SCC 65 (CanLII), per LeBel J at para 51
    see also: R v Morelli, 2010 SCC 8 (CanLII), per Fish J at para 40
    R v Campbell, 2011 SCC 32 (CanLII), per Charron J at para 14
    R v Dionisi, 2012 ABCA 20 (CanLII), per curiam at para 24
    R v Lee, 2011 ABCA 310 (CanLII), per O’Brien JA at para 14
  4. R v Wallace, 2016 NSCA 79 (CanLII), per Beveridge JA, at para 27
  5. R v Fan, 2013 BCSC 445 (CanLII), per BJ Brown J at para 17
    R v Bishop, 2010 BCSC 1927 (CanLII), per Cullen J, at paras 47-61
    R v Colbourne, 2001 CanLII 4711 (ON CA), [2001] O.J. No. 3620 (C.A.), per Doherty JA
  6. Fan, supra at para 17
    Lahaie v Canada (Attorney General), 2010 ONCA 516 (CanLII), per curiam at para 40
  7. R v Concepcion, 1994 CanLII 1746 (BC CA), (1994), 48 BCAC 44, per Finch JA
  8. R v Morley, 2013 BCSC 463 (CanLII), per Arnold-Bailey J, at paras 21 to 22
  9. R v Du, 2004 ABQB 937 (CanLII), per Macklin J at para 20 ("While the Crown quite properly took the view that it should not apply for a fresh warrant while the issue of the stay [arising from a quashed warrant] remained extant, there was nothing to prevent the Crown from doing or preparing whatever was necessary for an application to be brought almost immediately after the results of this application were known.")
  10. R v Cunsolo, [2008] OJ No 3754, 2008 CanLII 48640 (ON SC), per Hill J, at para 135
  11. R v Nguyen, 2007 ONCA 24 (CanLII), per curiam at para 48
    R v NNM, 2007 CanLII 31570 (ONSC), per Hill J at para 320
  12. NNM, ibid. at para 320
    Araujo, 2000 SCC 65 (CanLII), per LeBel J at 469 to 470
  13. NNM, ibid. at para 320
    R v Morris, 1998 CanLII 1344 (NSCA), per Cromwell JA at p. 551 ("requirement of candour is not difficult to understand; there is nothing technical about it")
    R v Hosie, 1996 CanLII 450 (ONCA), per Rosenberg JA at p. 399 (a justice can only perform their duty if "provided with accurate and candid information")
    R v Agensys Intl Inc, 2004 CanLII 17920 (ONCA), per Gillese JA at p. 491
  14. R v Liberatore, 2014 NSCA 109 (CanLII), per Fichaud JA

Standing

See also: Charter Applications

An accused who was subject of a judicial authorization that relied upon the results of a previous authorization does not have standing to challenge that previous authorization as it did not contemplate the accused.[1]

  1. R v Chang (2003) 173 CCC (3d) 397 (ONCA), 2003 CanLII 29135 (ON CA), per O’Connor ACJ and Armstrong JA

Presumptions and Burdens

A warrant is presumed valid.[1] The applicant bears the burden to establish that there was insufficient basis for issuing the warrant.[2] This presumption applies not only to the warrant but the ITO as well.[3]

  1. R v Campbell, 2010 ONCA 588 (CanLII), per Juriansz JA at para 45 aff'd at 2011 SCC 32 (CanLII), per Charron J
  2. Campbell, ibid. at para 45
    R v Shier, [1998] OJ No 5751 (*no CanLII links) at para 48
    Quebec (Attorney General) v Laroche, 2002 SCC 72 (CanLII), [2002] 3 SCR 708, per LeBel J
  3. R v Collins, 1989 CanLII 264 (ON CA), (1989) 48 CCC (3d) 343, per Goodman JA at p. 356

Degree of Deference

The reviewing judge is not examining police conduct with great attention to minor details or dissection. [1] Rather the judge must look at whether there is sufficient evidence for the warrant.[2] The warrant must be read in its entirety.[3]

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.[4]

The reviewing judge should not "substitute his or her own view for that of the authorizing judge."[5]

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".[6]

The review should not be an examination of police conduct "with a fine-tooth comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence".[7]

  1. R v Grant 1999 CanLII 3694 (ON CA), (1999), 132 CCC (3d) 531 (Ont. C.A.), per Charron JA at 543 (leave to appeal refused [1999] S.C.C.A. No. 168 (Q.L.), 150 CCC (3d) vi)
    R v Chan, 1998 CanLII 5765 (ONCA), [1998] O.J. No. 4536 (C.A.), per curiam at para 4
    R v Melenchuk and Rahemtulla, [1993] BCJ No. 558, 1993 CanLII 1011 (BC CA), per Gibbs JA at para 15-18
    Simonyi-Gindele et al v British Columbia (Attorney General), 1991 CanLII 1341 (BC CA), (1991), 2 BCAC 73 (C.A.), per Macdonald JA at para 21 ("It is not appropriate, when testing the validity of a warrant, to parse and microscopically examine words, phrases or paragraphs in isolation, as the appellants urge us to do.")
    R v Saunders, 2003 NLCA 63 (CanLII), per Wells CJ and Rowe JA, the reviewing judge should not to deconstruct every paragraph in the ITO
  2. R v Nguyen, 2011 ONCA 465 (CanLII), per Blair JA at para 57
  3. Simonyi-Gindele, supra at para 21 ("The warrant must be read in its entirety in order to arrive at the meaning that the person exercising it would attribute to it")
  4. R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J at para 54
    See also R v Witaker 2008 BCCA 174 (CanLII), per Frankel JA
    R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421, per Sopinka J at para 56
    R v Grant, 1993 CanLII 68 (SCC), [1993] 3 SCR 223, per Sopinka J at para 49
    R v Veinot (1995), 144 N.S.R. (2d) 388 (C.A.) at p. 391, 1995 CanLII 4262, per Jones JA
    R v Morelli, 2010 SCC 8 (CanLII), per Fish J at para 40
  5. Garofoli, supra
  6. R v B.(J.E.), 1989 CanLII 1495 (NS CA), (1989), 52 CCC (3d) 224 (NSCA), per Macdonald JA
  7. R v Nguyen, 2011 ONCA 465 (CanLII), per Blair JA at para 57

Quality of Drafting

See also: Information to Obtain a Search Warrant

Flaws are to be expected. [1]Inaccuracies or material facts not disclosed does not necessarily detract from the existence of statutory preconditions.[2]

It is only important that the "core substance of the ITO could support the justice of the peace's exercise of discretion or issue the warrant".[3]

Police are not "legal draftspersons" and cannot be expected to "spell out things with the same particularity of counsel"[4]

The warrant must be read in its entirety to understand its meaning.[5]

The ITO is examined on the whole, and not piecemeal. [6]

It should be "reliable, balanced and material facts supporting the asserted grounds of belief". It should be "clear, concise, legally and factually sufficient"[7]

The ITO should not need to "replicate a Crown disclosure brief" and it does not "need to include every minute detail of the police investigation".[8]

A lack of chronological order or an otherwise confusing order is not necessarily fatal so long as it has a reasonable approach.[9]

Grammatical errors that do not "mislead" in a significant way.[10]

  1. R v Nguyen, 2011 ONCA 465 (CanLII), per Blair JA at para 58
  2. R v Pires 2005 SCC 66 (CanLII) at para 30
  3. R v Ngo, 2011 ONSC 6676 (CanLII), per Hill J at para 34
  4. Ngo, ibid. at para 34 per Hill J
    R v Durling, 2006 NSCA 124 (CanLII), per MacDonald CJ at para 19
    R v Sanchez, 1994 CanLII 5271 (ONSC), per Hill J at p. 364
    R. v Melenchuk (1993), 1993 CanLII 1011 (BC CA), per Gibbs JA at para 15 ("It would be impractical to expect of an officer swearing an information in these circumstances the precise prose of an Oxford grammarian, the detailed disclosures of a confessional and the legal knowledge of a Rhodes scholar.")
  5. Simonyi-Gindele v Sliter, 1991 CanLII 984 (BC CA), per Gibbs JA ("The warrant must be read in its entirety in order to arrive at the meaning that the person exercising it would attribute to it.")
  6. R v Whitaker, 2008 BCCA 174 (CanLII), per Frankel JA
    R v Brachi, 2005 BCCA 461 (CanLII), per Smith JA
    Re Church of Scientology & the Queen (No. 6) 1987 CanLII 122 (ON CA), (1987), 31 CCC (3d) 449 (Ont. C.A.)
  7. Ngo, supra at par 34
  8. Ngo, supra at para 34
    CBC v AG of NB, 2000 SCC 65 (CanLII), per Lebel J at p.470
    R v Ling, 2009 BCCA 70 (CanLII), per Bauman JA at para 43
  9. e.g. R v Morley, 2013 BCSC 463 (CanLII), per Arnold-Bailey J at para 45
  10. R v McNeice, 2010 BCSC 1544 (CanLII), per Meiklem J, at para 33

Errors, Omissions and Mischaracterizations in Information to Obtain

In the course of a review of an ITO and warrant, the discovery of "fraud, non-disclosure, misleading evidence and new evidence" is relevant but their "sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge".[1]

Affiant Standard of Care
Carelessness in drafting is not generally sufficient to invalidate the warrant. It must be intentionally false statements or omissions.[2] But it is not automatic. The court must consider their impact upon the basis of the decision to authorize.[3]

Knowledge Requirement of The Affiant for Errors or Omissions
Errors or omissions that are found must be shown to have been known, or should have been known, by the affiant.[4]

  1. R v Hafizi, 2016 ONCA 933 (CanLII), per Brown JA at para 44
  2. R v Prosser, 2014 ONSC 2645 (CanLII), per Wilson J, at para 52 See R v Villa, 1988 CarswellOnt 1641 (H.C.J.)(*no CanLII links) , at para 14
  3. Garofoli, supra, at p. 1452, (“fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge”.)
    Pires, supra, at para 8
  4. World Bank Group v Wallace, [2016] 1 SCR 207, 2016 SCC 15 (CanLII)

Material Omissions and Non-Disclosure

A failure to draft an ITO that is full, fair and frank may be a breach of s. 8 of the Charter.[1]

"Materiality" must be evaluated on the "totality of the circumstances".[2]

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. [3]

Material non-disclosure of fact made strategically by the police (such as for an improper motive including the intention to mislead the authorizing justice) may invalidate the warrant regardless of whether there existed reasonable and probable grounds to authorize the warrant.[4]

Non-disclosure of "neutral" facts is acceptable and not necessary.[5]

The ITO does not have to include non-observed details.[6]

Where there is an innocent material omission (ie. an omission without any improper motive), the reviewing judge must ask "whether the omission leaves the issuing judge with an incorrect impression or an insufficient basis on which to issue the warrant".[7]

Criminal Record
The affiant's failure to indicate a source's criminal record will only be a Charter breach of s. 8 where the information is "material".[8]

As a "best practice for police", they should provide always provide an informant's criminal record.[9]

  1. R v Rocha, 2012 ONCA 707 (CanLII), per Rosenberg JA
  2. R v Nguyen, 2011 ONCA 465 (CanLII), per Blair JA at para. 57 and 58
  3. e.g. R v Morelli 2010 SCC 8 (CanLII), [2010] 1 SCR 253, per Fish J, at para 58
    R v NNM 2007 CanLII 31570 (ON SC), (2007), 223 CCC (3d) 417 (Ont. Sup. Ct. of Jus.), per Hill J at para 354 (“... as a straw man affiant apparently deliberately kept in the dark ...”)
  4. R v McElroy, 2009 SKCA 77 (CanLII), per Wilkinson JA, at para 30
    R v Araujo, 2000 SCC 65 (CanLII), per LeBel J
  5. R v Readhead, 2008 BCCA 193 (CanLII), per Lowry JA
  6. R v Nguyen, 2011 ONCA 465 (CanLII), per Blair JA at para 49, 50
  7. McElroy, supra at para 30
  8. R v White, 2017 ONSC 5647 (CanLII), per De Sa J, at para 35
  9. White, ibid. at para 34
    R v Rose, 2015 ONCA 183 (CanLII), per curiam

False or Misleading Information

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."[1]

The warrant will typically be invalid if the misstatement or omission was deliberate or a finding of bad faith. [2] The quashing is necessary to avoid corruption of the process.[3] However, where the justice "could have" granted the warrant regardless of the deception, it may still be valid.[4]

However, at times a poorly drafted and misleading warrant will, on its own, invalidate the warrant.[5]

Deliberate Misleading
Deliberately misleading information should be excised from the ITO. Where it taints the ITO as a whole it may invalidate the warrant.[6]

A "deliberately misleading" ITO will invalidate the warrant.[7]

Error on Source
A warrant will be invalidated by the claimed basis to be "reliable, confidential sources" when in fact it was based on a wiretap.[8]

  1. R v Bisson, 1994 CanLII 46 (S.C.C.), [1994] 3 SCR 1097; (1995), 94 CCC (3d) 94, per curiam at p. 1098
  2. R v Melenchuk, 1993 CanLII 1011 (BC CA), (1993), 24 BCAC 97 (BCCA), per Gibbs JA
    R v Donaldson 1990 CanLII 630 (BC CA), (1990), 58 CCC (3d) 294 (BCCA), per Hinkson JA - police deliberated withheld information from the JP
    R v Sismey 1990 CanLII 1483 (BC CA), (1990), 55 CCC (3d) 281, per Lambert JA at p. 285
    R v Innocente 1992 CanLII 2449 (NS CA), (1992), 113 N.S.R. (2d) 256 (S.C.), per Hallett JA
    R v Silvestrone 1991 CanLII 5759 (BC CA), (1991), 66 CCC (3d) 125 (BCCA), per Toy JA at p. 136
    R v Brassard, 1992 CanLII 8136 (SK QB), (1992), 77 CCC (3d) 285 (Sask.Q.B.), per Noble J
    R v Dellapenna, 1995 CanLII 428 (BC CA), (1995), 62 BCAC 32 (BCCA), per Southin JA
    R v Fletcher, 1994 CanLII 4169 (NS SC), (1994), 140 N.S.R. (2d) 254, per Carver J
  3. R v Maton, 2005 BCSC 330 (CanLII), per Romilly J at para 26
    R v Morris 1998 CanLII 1344 (NS CA), (1998), 134 CCC (3d) 539 (NSCA), per Cromwell JA at para 44 - officer must exercise "honesty, good faith and diligence"
  4. R v Bisson 1994 CanLII 46 (SCC), (1994), 94 CCC (3d) 94 (S.C.C.) upholding Proulx J.A. in 1994 CanLII 5328 (QC CA), (1994), 87 CCC (3d) 440 (Que.C.A.)
  5. e.g. R v Norris (1993), 35 BCAC 133, 1993 CanLII 681 (BC CA), per McEachern JA
  6. Morris, supra at p. 553 (CCC)
  7. R v Innocente, 1992 CanLII 2449 (NS CA), per Hallett JA
  8. R v Donaldson, 1990 CanLII 630 (BC CA), per Hinkson JA

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. [1]

A warrant permitting a search of a computer does not give unfettered access to all the data on the computer. The warrant should detail the types of evidence sought.[2]

  1. Church of Scientology and The Queen (No. 6), Re, 1987 CanLII 122 (ON CA), per curiam: ("The description of what is to be searched for must not be so broad and vague as to give the searching officers carte blanche to rummage through the premises of the target. The things must be described in such a way as to guide the officer or officers carrying out the search and assist them in identifying the object.")
  2. R v Jones, 2011 ONCA 632 (CanLII), per Blair JA at para 24, 25, 46

Failure to Take Investigative Steps

It is generally accepted that in the Garofoli analysis challenging a warrant, the police "are to be judged on what they did, not what they could have done".[1] Thus, the failure of taking further investigative steps before seeking a warrant will not invalidate the warrant.

  1. R v Vu, 2011 BCCA 536 (CanLII), per Frankel JA at para 44, 45

Excising or Severing Errors

Where an authorization contains both valid and invalid parts, the court is permitted to excise the invalid parts "So long as they are not so interwoven that they cannot be separated".[1]

However, there's the possibility for confusion or over-broad seizure then the warrant should not be excised.[2]

  1. R v Grabowski, [1985] 2 SCR 434, 1985 CanLII 13 (SCC), per Chouinard J
    R v Sandham, 2009 CanLII 59684 (ON SC), [2009] OJ No 4559, per Heeney J
    R v Nurse, 2014 ONSC 1779 (CanLII), per Coroza J
    See also R v Jacobson, [2004] O.J. No. 933 (S.C.J.), 2004 CanLII 5912 (ON SC), per Ferguson J
    R v Sonne, [2012] O.J. No. 6243 (S.C.J.), 2012 ONSC 584 (CanLII), per Spies J
  2. Nurse, supra at para 35
    R v N.N.M., 2007 CanLII 31570 (ON SC), [2007] O.J. No. 3022 (S.C.J.), per Hill J

Excised and Redacted Portions of ITO

Inaccurate, omitted, or misleading information in an ITO does not necessarily render it invalid. Inaccurate information can be excised or expunged from the ITO, and re-evaluated without the offending information.[1]

Where a reviewed ITO contains redacted content, the reviewing judge must consider whether, given the information available in the ITO, the justice could have issued the warrant on the basis of what remains of the edited ITO.[2]

  1. See R v Bisson 1994 CanLII 46 (SCC), [1994] 3 SCR 1097, (1994) 94 CCC (3d) 94 at pp. 95-96
    R v Budd, 2000 CanLII 17014 (ON CA) at para 20-23
    R v Agensys International Inc., 2004 CanLII 17920 (ON CA) at para 32
    R v Morley, 2013 BCSC 463 (CanLII), per Arnold-Bailey J at para 33
  2. Pitre v R., 2011 NBCA 106 (CanLII) at para 34

Procedure for Review of Warrant

See also: Voir Dire#Challenging Warrant Validity

When an accused person seeks to challenge an ITO supporting a warrant by cross-examination of the informant the procedure should go as follows:[1]

  1. The trial judge should determine whether a voir dire is necessary and, if so, whether the calling of evidence should be permitted;
  2. If the judge accedes to the request to hold a voir dire and the accused wishes to cross-examine the informant, then the accused must obtain leave of the judge to do so. If the judge grants leave, then he or she can limit the scope of the cross-examination;
  3. Cross-examination should proceed to the extent permitted by the order granting leave;
  4. Re-examination, if any, should follow the cross-examination; and
  5. The trial judge should determine whether the record as amplified on the review could support the issuance of the warrant.
  1. R v Wilson, 2011 BCCA 252 (CanLII) paras 62-67, 69

Threshold Test to Challenge a Warrant

There is no open right to challenge a search warrant. The accused must apply for the right to have a voir dire by way of a "Vukelich hearing".[1] The determination of whether to permit the accused to challenge the warrant can be made on the basis of submissions of counsel.[2] Where the threshold has been passed, it does not necessarily follow that witnesses be called. The court may allow only arguments based on the face of the warrant. [3]

  1. R v Vukelich (1996), 108 CCC (3d) 195, 1996 CanLII 1005 (BC CA), per McEachern JA
  2. Vukelich, ibid. at paras 17, 26
    Wilson at para 62
  3. Wilson, supra at para 62,63

Types of Challenges to the Warrant

Challenging to a warrant may come as an attack on the facial or sub-facial validity. The court has discretion whether to treat each attack separately or in a single voir dire.[1]

Facial validity
An attack on facial validity involves an examination of the ITO by itself, not involving on amplification or record evidence, and determine whether a justice could have issued the warrant.[2]

Sub-facial validity
An attack on sub-facial validity involves an examination of the form of the ITO with a view to "impeach the reliability of its content" and to determine "whether, on the record before the authorizing justice as amplified on the review, the authorizing justice could have issued the warrant".[3] This form of attack can involve the use of amplification evidence, but it should not expand the review to permit the judge from giving his opinion on whether he would have granted the warrant.[4] The reviewing judge must determine whether "authorizing justice could have issued the warrant" if the judge had been aware of the amplification evidence.[5]

  1. R v Sadikov, 2014 ONCA 72 (CanLII), per Watt JA at para 36
  2. Sadikov, ibid. at para 37
    R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J at para 19
    R v Wilson, 2011 BCCA 252 (CanLII), per Finkel JA at para 39
  3. Sadikov, ibid. at para 38
    Araujo, supra at para 50
    Wilson, supra at para 40
  4. Sadikov, supra at para 38
  5. Sadikov, supra at para 38
    Araujo, supra at para 51

Leave to Cross-Examine Affiant ("Garofoli" Motion)

When conducting an attack on the sub-facial validity of the warrant, the accused may seek leave to cross-examine the affiant who swore the ITO for the purpose of questioning the affiant's reliability and credibility.[1]

The general rule is that leave should be granted where the judge is "satisfied that cross-examination is necessary to enable the accused to make full answer and defence".[2]

The accused must specifically establish "that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization".[3] Phrased differently, the test is whether there is a "reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge".[4] Generally, this would only include issues of credibility and reliability of the affiant and their sources.[5]

Cross-examination should not be permitted where "there is no reasonable likelihood that it will impact on the question of admissibility of the evidence".[6]

Where cross-examination is permitted, it should be restricted to "questions that are directed to establish that there was no basis which the authorization could have been granted".[7] The judge may further limit the area of cross-examination to specific issues of controversy.[8]

It should not be used to extend the hearing unnecessarily and should not permit discovery of confidential sources.[9]

Where the court denies leave to cross-examine the affiant, the defence may still call other amplification evidence to attack reliability.[10]

The test applied to affiants of a wiretap is not a stringent one.[11]

See Also: R v Pham, 2009 CanLII 60792 (ON SC), per Hill J for a comprehensive review by Justice Hill.

  1. R v Sadikov, 2014 ONCA 72 (CanLII), per Watt JA at para 39
  2. R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421, per Sopinka J at para 88
  3. Garofoli, ibid. at para 88-89
  4. R v Pires; R v Lising, 2005 SCC 66 (CanLII), [2005] 3 SCR 343, per Charron J at paras 3
    Sadikov, supra at para 45 ("reasonable likelihood that the proposed cross-examination will elicit evidence that tends to discredit the existence of a condition precedent to the issuance of the warrant")
  5. Sadikov, supra at para 40
  6. R v Pires; Lising, supra at para 31
  7. Garofoli, supra at paras 88-89
  8. Pires, supra at para 10
  9. Garofoli, supra at para 87
    Pires, supra at para 10
  10. Sadikov at paras 41, 45
  11. R v Williams 2003 CanLII 18484 (ON CA), (2003), 181 CCC (3d) 414 (Ont. C.A.), per Rosenberg JA at para 11

Amplification Evidence

The reviewing judge is entitled to consider "evidence bearing on the existence in fact of reasonable and probable cause shown to be in the knowledge of the police at the time the warrant was sought.” [1]

Amplification evidence can be elicited at a voir dire to correct minor errors in the ITO. This will be permitted as "long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice." [2]

Amplification evidence should not be used "to remove the requirement that the informant make their case to the issuing justice in the initial application" or else it "would turn the prior authorization process into a sham."[3] It cannot be used to "retroactively authorize a search that was not initially supported by reasonable and probable grounds".[4]

It can be permitted to amplify an innocent mis-statement or mis-characterization within the ITO.[5]

Evidence obtained after the execution of the warrant cannot be admitted as amplification evidence.[6]

Evidence
It appears that amplification evidence can take the form of transcripts from preliminary inquiries, police notes and reports.[7]

  1. R v Gordon, 1999 CanLII 18640 (MB CA), (1999) 138 Man. R. (2d) 298 (C.A.) at par. 36 citing R v Morris 1998 CanLII 1344 (NS CA), (1998), 134 CCC (3d) 539 (NSCA)
  2. R v Morelli, 2010 SCC 8 (CanLII), per Fish J at para 41
  3. R v Morley, 2013 BCSC 463 (CanLII), per Arnold-Bailey J at para 37
  4. Morelli, supra at para 42
    R v Voong, 2013 BCCA 527 (CanLII) at para 56
  5. R v Plant, 1993 CanLII 70 (SCC), [1993] 3 SCR 281 - ITO was overly specific of address, when informant gave more general description. Amplification clarified how full address was obtained.
  6. Voong, supra
  7. e.g. see R v MacDonald, 2014 NSSC 218 (CanLII) at para 15

Effect of an Invalid Warrant

Once a warrant is quashed, the reviewing court has the power to order the items seized to be returned.[1] This power is incidental to the power to quash a warrant.[2]

If the items seized are needed for an ongoing or anticipated prosecution, the court can refuse to return the items.[3]

There are no formal requirements necessary for the Crown to establish the need for the items.[4]

Factors to consider include:[5]

  • The conduct of the prosecuting authorities in relation to the search and seizure;
  • the seriousness of the alleged offence,
  • the degree of potential cogency of the things in proving the charge,
  • the nature of the defect in the warrant and
  • the potential prejudice to the owner from being kept out of possession.


  1. R v Du, 2004 ABQB 937 (CanLII), per Macklin J at para 8
  2. Du, ibid. at para 8
  3. Du, ibid. at para 8
  4. Du, ibid. at para 8
  5. Du, ibid. at para 8

Execution of Search Warrants

Scope of Search Warrant Powers

A warrant that authorizes a search of a location for a thing "confers on those executing that warrant the authority to conduct a reasonable examination of anything at that location within which the specified things might be found".[1]

Framed differently, an authorization to search a place generally permits searches of receptacles within that place.[2]

However, a residential warrant permitting the search of a residence cannot grant the authorization to search electronic devices. Devices found must be searched under authorization of another warrant or must be specially authorized by the residential warrant.[3] The "receptacle rule" does not apply.[4]

Once an officer enters a premises under a valid warrant during the specified time frame, the warrant remains operative until the search is complete and the officers leave.[5]

Officers conducting a search are entitled to "ensure a potentially volatile situation was under control" and during this time they are able to deny any detainee of their right to counsel.[6]

A search does not become unreasonable simply because, during the execution of the warrant, the police are anticipating to find evidence of other offences.[7]

A particular "method of search should only… be found to be unreasonable if that means that no lawful search has any real prospect of being effective".[8]

The reasonableness of a search will sometimes turn on "the amount of information the police must have before deciding how the search will be conducted, and the level of risk they must tolerate as a result of the way the searches conducted".[9]

Section 29 of the code does not require that any particular member of an entry team of police officers have a copy of the warrant "with him" as long as at least one member of the search team participating has a copy of the warrant and can produce upon request.[10]

The wearing of masks by police officers will not render a reasonable search unreasonable and vice versa. [11]

Duration of Search
Once the police enter into the premises within the window of time specified by the warrant, the "warrant remains operative until the police complete their search and finally leave the premises".[12] The police may stay in the residence beyond the authorized time limit to finish their search.[13]

However, once the search is finished the police must leave immediately.[14] Once departed, the police may not re-enter without a new authorization.[15]

Officer Safety
While executing a search warrant the police may perform searches that are not authorized within the warrant for the purposes of officer safety.[16]

Providing Copies of Warrants Upon Execution
Under s.487.1(7), in executing a 487.1 telewarrant, the officer must provide a copy of the warrant to "any person present and ostensibly in control of the place or premises".

Under s.487.1(8), in executing a 487.1 telewarrant, the officer must affix a copy of the warrant at the place of residence should there be no one present at the time.

  1. R v Vu, 2013 SCC 60 (CanLII), per Cromwell J at para 23
  2. Vu, ibid. at para 39
    J.A. Fontana and D. Keeshan, The Law of Search and Seizure in Canada (8th ed. 2010), at p. 1181
    e.g. R v E. Star International Inc., 2009 ONCJ 576 (CanLII), per Chisvin J at para 17
    BGI Atlantic Inc. v Canada (Minister of Fisheries and Oceans), 2004 NLSCTD 165 (CanLII), per Leblanc J at paras 70-72
    R v Charles, 2012 ONSC 2001 (CanLII), per Molloy J at para 61
  3. Vu, supra at para 24
  4. Vu, supra at para 24, 39
  5. R v Woodall, [1991] O.J. No. 3565 (Gen. Div.)(*no CanLII links) , aff’d [1993] O. J. No. 4001 (C.A.)(*no CanLII links)
  6. R v Strachan, 1988 CanLII 25 (SCC), [1988] 2 SCR 980, per Dickson CJ
  7. R v Daigle, 1994 CanLII 214 (BC CA), [1994] BCJ No. 2118, per Rowles JA at para 21
    R v Yue, [1998] BCJ No. 1619(*no CanLII links) , at para 5
  8. R v Cornell, 2009 ABCA 147 (CanLII), per Slatter JA
  9. Cornell, ibid.
  10. Cornell, ibid.
  11. Cornell, ibid. in obiter
  12. R v Rafferty, 2012 ONSC 703 (CanLII), per Heeney J at para 28
    "The law is clear that once the police enter the premises within the time frame specified in the search warrant, as they did here, the warrant remains operative until the police complete their search and finally leave the premises: R v Woodall, [1991] O.J. No. 3565 (Gen. Div.), aff’d [1993] O. J. No. 4001 (C.A.)."
  13. Woodall, ibid. at para 57 to 61 aff'd ONCA at para 2
    R v Brown, 2010 ONSC 2280 (CanLII), per James J at paras 17 to 23
    Rafferty, supra at paras 26 to 28
    R v Gerlitz, 2013 ABQB 624 (CanLII), per Gates J at paras 61 to 71
  14. R v Shin, 2015 ONCA 189 (CanLII), per Gillese JA at pars 24, 34, and 57
  15. R v Finlay and Grellette, 1985 CanLII 117 (ON CA), per Martin JA at p. 63
  16. R v Chuhaniuk, 2010 BCCA 403 (CanLII) para 55

Lawful Entry into a Dwelling House

When executing an arrest warrant for someone in a residence, the police may enter under the "knock and announce" doctrine without a residential search warrant.[1]

Where the police are present at a dwelling-house that is accessible to them, they may enter in certain circumstances. Unless there are exigent circumstances, the officer must make an announcement before forcing entry into a dwelling house. This is known as the knock-and-announce rule. This involves the following:[2]

  1. notice of presence by knocking or ringing the door bell,
  2. notice of authority, by identifying themselves as law enforcement officers and
  3. notice of purpose, by stating a lawful reason for entry.

Once the announcement has been made the police must give the potential occupants a reasonable amount of time to answer the door.[3]

The purpose of this rule is to protect "the dignity and privacy interests of the occupants of the house, and the enhancement of the safety of the police and the public".[4]

Where announcement has been made and the police receive no answer, they are entitled to enter the home by force (the knock-and-break-in-the-door-if-no-answer rule). [5]

An officer executing a search warrant must have the warrant available for production to allow the occupant to know (1) the reason for the search, informing them of their legal position and (2) that there is a "colour of authority for the police to enter.[6]

Hard/Dynamic Entry
A hard entry (or dynamic entry) is an entry into a house without following the "knock-and-announce" common law rule.

The burden is upon the police to prove on a balance of probabilities that the departure from the knock-and-announce rule was justified.[7]

Police may enter a residence with a search warrant and not follow the common law rule where they have grounds believe that announcing may result in evidence being destroyed or resistance may be made where officers will be put at risk. [8] This has been approved in circumstances involving investigation for child pornography.[9]

The use of "hard entries" do not require judicial approval, but including it in the ITO would go contribute to the validity of the warrant.[10]

  1. R v Cornell, 2010 SCC 31 (CanLII), [2010] 2 SCR 142, per Cromwell J, - knock and announce rule
    See Execution of Search Warrants#Lawful Entry into a Dwelling House
    Also Warrant Arrests#Feeney Warrant of Arrest
  2. Cornell, supra at para 18
  3. R v Pan, 2012 ONCA 581 (CanLII), per Laskin JA at para 40
    also R v Cao, 2008 BCSC 139 (CanLII), 167 C.R.R. (2d) 120, per Bruce J
  4. R v Pan, supra citing Cornell, at para 19
  5. Pan, supra at para 38
  6. See Search and Seizure Law in Canada at p. 17-5
  7. R v Burke, 2013 ONCA 424 (CanLII), per Weiler JA at para 41
  8. R v Thompson, 2010 ONSC 2862 (CanLII), per Code J - deployed a flash-bang device and left house in disarray. R v Jordan, 2011 ABQB 105 (CanLII), per Mahoney J
  9. Burke, supra
  10. Thompson, supra

Residual Search Powers During Execution

An officer may search an outbuilding on the property of the residence to be searched where it is part of a "security check".[1]

An officer may not search any person found with a residence to be searched unless there are specific grounds to do so.[2]

Nor can police arrest a person for simply being present inside a suspected drug house.[3] However, s. 11(5) of the CDSA permits searching where there is belief that person is holding drug related property.

Search of Vehicle During Residential Search

A vehicle parked across the street from a residence being searched pursuant to a warrant cannot be searched under that same warrant. [4]

  1. R v Chuhaniuk, 2010 BCCA 403 (CanLII), per Frankel JA
  2. R v Thompson, [1996] O.J. No. 1501 (Ont.Ct.J.-Prov.Div.)(*no CanLII links)
    R v Mutch, 1986 CanLII 2963 (SK QB), (1986), 22 C.R.R. 310, 47 Sask. R. 122 (Q.B.), per Noble J
  3. R v Nguyen, 1999 CanLII 5099 (BC SC)
  4. R v Frieburg, 2011 MBQB 58 (CanLII), per Menzies J, evidence excluded under section 24 (2) for the search of a vehicle

Night Searches

Under s. 488 limits the use of night searches under the Criminal Code:

Execution of search warrant
488. A warrant issued under section 487 [territorial search warrants] or 487.1 [telewarrants] shall be executed by day, unless

(a) the justice is satisfied that there are reasonable grounds for it to be executed by night;
(b) the reasonable grounds are included in the information; and
(c) the warrant authorizes that it be executed by night.

R.S., 1985, c. C-46, s. 488; R.S., 1985, c. 27 (1st Supp.), s. 70; 1997, c. 18, s. 47.
[annotation(s) added]


CCC

The restrictions on night searches under s. 488 do not apply to searches authorized under s. 11 of the CDSA.[1]

A search of a house should be approached with the highest degree of privacy.[2]

An applicant must include a request to perform a night search within the ITO.

A night search will only be granted in "exceptional circumstances".[3] Mere convenience is not enough.[4] The reason for a night search must be found in the text of the ITO to be valid.[5]

A night search that does not comply with s. 488 is invalid and can be quashed. An invalid night search also violates s. 8 of the Charter.[6]

A lack of evidence that the entry frightened anyone goes to a finding that the night search was not unreasonable.[7]

If there are any errors in the warrant, the fact that it was a search that took place at night will exaggerate the defects.[8]

Police do not need to establish the necessity for night search, rather just needs to be reasonable grounds.[9]

The judge may only consider the circumstances known at the time that the warrant was issued.[10]

Factors to consider include:[11]

  • The seriousness of the offence;
  • Than likely occupancy of the residence;
  • The degree of destruction to privacy by the search;
  • The nature of the item to be searched for, Including the likelihood of it being disposed of;
  • The need of the investigation.

Overly general grounds such as a belief that the items can "easily be moved or destroyed" and maybe "sold or rented" are insufficient to support an application under section 488. [12]

Not Required for s. 11 CDSA Warrants
There is no requirements similar to s. 488 for a night search under s. 11 of the CDSA.[13]

  1. R v Shivrattan, 2017 ONCA 23 (CanLII), per Doherty JA at para 60
    R v Dueck, 2005 BCCA 448 (CanLII), per Ryan JA at paras 17-21
  2. R v Sutherland, 2000 CanLII 17034 (ON CA), per Carthy JA at para 15 (“A search of a dwelling house must be approached with the degree of responsibility appropriate to an invasion of a place where the highest degree of privacy is expected”)
  3. Sutherland, ibid. at para 25
  4. R v Trieu, 2010 BCCA 540 (CanLII), per Prowse JA ("Absent situations calling for immediate attention, such as the examples to which I have referred, mere convenience cannot justify attendance on private property late at night")
  5. R v Posternak (1929), 24 Alta. L.R. 202, 51 CCC 426(*no CanLII links)
  6. R v Anderson, 2001 BCSC 674 (CanLII), per Morrison J at para 17
    R v Sutherland, 2000 CanLII 17034 (ON CA), per Carthy JA at para 33-34
    R v Kirkham, 2004 BCSC 1150 (CanLII), per Chamberlist J at para 54
  7. R v MacDonald, 2012 ONCA 244 (CanLII), 290 O.A.C. 21, per Laskin JA at para 30
  8. Sutherland, supra at paras 12, 25, 29, 30
  9. R v LVR, 2014 BCCA 349 (CanLII), per Saunders JA
  10. LVR, ibid.
  11. LVR, ibid. at paras 24, 25
  12. R v Phillips, 2011 ONSC 1881 (CanLII) ("The simple statement that some of the items to be searched for maybe easily moved or destroyed, without more, does not suffice.")
  13. see CDSA Warrants

Seizure of Evidence

See also: Seizure of Property

Whenever evidence, other than records or documents, are seized pursuant to a search warrant or incidental to a search, the officer must file an initial Report To Justice under s.489.1 regardless of whether charges are contemplated.

Where the property is to be held for a period of greater than 30 days without charges being laid, the officer must also request a Detention Order from the justice or judge.

Search of Location Outside of Canada

The Charter does not apply to search and seizure occurring outside of Canada.[1]

A search and seizure outside of Canada must comply with local law.[2] The conduct by Canadian authorities that triggers a search and seizure in a foreign country does not need to be authorized by a Canadian judicial authorization.[3]

  1. R v Hape, 2007 SCC 26 (CanLII), per Lebel J at para 88
  2. Hape, ibid. at para 88
  3. Canada (Attorney General) v Schreiber, 1998 CanLII 828 (CanLII), per Lamer CJ at para 28

Execution of Wiretap Warrant

Execution of authorizations
188.1 (1) Subject to subsection (2), the interception of a private communication authorized pursuant to section 184.2, 184.3, 186 or 188 may be carried out anywhere in Canada.
Execution in another province
(2) Where an authorization is given under section 184.2, 184.3, 186 or 188 in one province but it may reasonably be expected that it is to be executed in another province and the execution of the authorization would require entry into or upon the property of any person in the other province or would require that an order under section 487.02 be made with respect to any person in that other province, a judge in the other province may, on application, confirm the authorization and when the authorization is so confirmed, it shall have full force and effect in that other province as though it had originally been given in that other province.
1993, c. 40, s. 9.


CCC

No civil or criminal liability
188.2 No person who acts in accordance with an authorization or under section 184.1 or 184.4 or who aids, in good faith, a person who he or she believes on reasonable grounds is acting in accordance with an authorization or under one of those sections incurs any criminal or civil liability for anything reasonably done further to the authorization or to that section.
1993, c. 40, s. 9.


CCC

See Also

Special Search Warrant Issues

Computer Investigations

Searches That May Intrude on Solicitor-client Privilege

Journalist Records and Sources

Other Privileged Records

See also: Privilege

Confidential records kept by a First Nations Band persuant to a Band Counsel Resolution can be subject to a search warrant.[1]

When a peace officer is "applying for" and "executing search warrants should be alive to ensuring that solicitor-client privilege is protected to the greatest extent possible, whenever the circumstances so warrant".[2]

  1. R v Tomah, 1996 CanLII 4847 (NBCA), per curiam at p. 5
  2. R v Ciarniello, 2004 CanLII 23110 (ON SC), per Dawson J at para 77

Assistance Orders

Assistance order
487.02 Where an authorization is given under section 184.2 [consent wiretap], 184.3, 186 [wiretap] or 188, a warrant is issued under this Act or an order is made under subsection 492.2(2) [transmission data recorder warrant], the judge or justice who gives the authorization, issues the warrant or makes the order may order any person to provide assistance, where the person’s assistance may reasonably be considered to be required to give effect to the authorization, warrant or order.
1993, c. 40, s. 15; 1997, c. 18, s. 43.
[annotations added]


CCC

Section 490.02 can be used to compel employees of an office to locate and gather items and provide them to police.[1]

  1. R v National Post, 2004 CanLII 8048 (ON SC), per Benotto J, at para 32

Taking Pictures at the Scene

An officer may take photos at the scene of their investigation of what they believed to be a crime. Generally, they are entitled to record a scene that they are lawfully allowed to make observations of. [1] It also follows that no violation of s. 10(b) could be found where an officer takes a picture of an accused while at the scene.[2]

  1. R v Nguyen, 2013 BCSC 950 (CanLII), per Williams J at paras 109-114
    R v Ly, 2012 BCSC 504 (CanLII), per Barrow J at para 42
  2. Ly, ibid.
    Nguyen, supra

Motor Vehicle Searches

See also: Ancillary Powers Doctrine

Random Roadside Searches
Random roadside detentions and searches violate s. 8 right against unreasonable search and seizure. [1]

  1. R v Hufsky, [1988] 1 SCR 621, 1988 CanLII 72 (SCC), per Le Dain J
    R v Dedman, 1985 CanLII 41 (SCC), [1985] 2 SCR 2, per Le Dain J - not authorized at common law

Disclosing Evidence Seized Under a Warrant

Generally, law enforcement will be able to disclose information and evidence to other law enforcement agencies without the need of a judicial authorization.[1]

  1. Wakeling v United States of America, [2014] 3 SCR 549, 2014 SCC 72 (CanLII), per Moldaver J

Executing Search Warrants in Another Province

See also: Special Jurisdiction for Offences Over Water

Execution in another province
487.03 (1) If a warrant is issued under section 487.01 [general warrants], 487.05 [DNA samples] or 492.1 [tracking warrants] or subsection 492.2(1) [transmission data recorder warrant] 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.
[annotations added]


CCC

The execution of a wiretap warrant in a different province is governed by s. 188.1(2):

188.1.
...
Execution in another province
(2) Where an authorization is given under section 184.2, 184.3, 186 or 188 in one province but it may reasonably be expected that it is to be executed in another province and the execution of the authorization would require entry into or upon the property of any person in the other province or would require that an order under section 487.02 be made with respect to any person in that other province, a judge in the other province may, on application, confirm the authorization and when the authorization is so confirmed, it shall have full force and effect in that other province as though it had originally been given in that other province.
1993, c. 40, s. 9.


CCC

Section 487 Warrants

See also: Section 487 Search Warrants

487 (1) ...
Endorsement of search warrant
(2) If the building, receptacle or place is in another territorial division, the justice may issue the warrant with any modifications that the circumstances require, and it may be executed in the other territorial division after it has been endorsed, in Form 28, by a justice who has jurisdiction in that territorial division. The endorsement may be made on the original of the warrant or on a copy of the warrant transmitted by any means of telecommunication.
...
Effect of endorsement
(4) An endorsement that is made in accordance with subsection (2) is sufficient authority to the peace officers or public officers to whom the warrant was originally directed, and to all peace officers within the jurisdiction of the justice by whom it is endorsed, to execute the warrant and to deal with the things seized in accordance with section 489.1 or as otherwise provided by law.
R.S., 1985, c. C-46, s. 487; R.S., 1985, c. 27 (1st Supp.), s. 68; 1994, c. 44, s. 36; 1997, c. 18, s. 41, c. 23, s. 12; 1999, c. 5, s. 16; 2008, c. 18, s. 11.


CCC

"Territorial division" is defined in s. 2 of the Code.[1]

Exercise of Police Powers Outside of Canada

See also: Special Jurisdiction for Offences Over Water

Exercising powers of arrest, entry, etc.
477.3 (1) Every power of arrest, entry, search or seizure or other power that could be exercised in Canada in respect of an act or omission referred to in section 477.1 may be exercised, in the circumstances referred to in that section,

(a) at the place or on board the ship or marine installation or structure, within the meaning of section 2 of the Oceans Act, where the act or omission occurred; or
(b) where hot pursuit has been commenced, at any place on the seas, other than a place that is part of the territorial sea of any other state.

Arrest, search, seizure, etc.
(2) A justice or judge in any territorial division in Canada has jurisdiction to authorize an arrest, entry, search or seizure or an investigation or other ancillary matter related to an offence

(a) committed in or on the territorial sea of Canada or any area of the sea that forms part of the internal waters of Canada, or
(b) referred to in section 477.1

in the same manner as if the offence had been committed in that territorial division.

Limitation
(3) Where an act or omission that is an offence by virtue only of section 477.1 is alleged to have been committed on board any ship registered outside Canada, the powers referred to in subsection (1) shall not be exercised outside Canada with respect to that act or omission without the consent of the Attorney General of Canada.
1990, c. 44, s. 15; 1996, c. 31, s. 70. 477.4 (1) and (2) [Repealed, 1996, c. 31, s. 71]


CCC

Law Office Searches

General Principles

See also: Special Search Warrant Issues

Law Office Searches

A justice of the peace should follow the following principles when considering a search of a law office so that solicitor-client privilege is protected:[1]

  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.

There is a duty upon those conducting the search of a law office to minimize the impairment of solicitor-client privilege.[2]

Law Offices
A "law office" includes "any place where privileged documents may reasonably be expected to be located".[3]

Restrictions
A search warrant of law office must impose conditions to protect potential privilege "as much as possible". Without proper protections the warrant is invalid.[4]

Appellate Review
There is no right of appeal of an order to produce law office documents under the Lavallee process. The only appeal lies in an appeal from verdict.[5]

Review of Documents
There is no requirement that a court review all lawyer documents to determine if they contain privilege.[6] Courts should only review "to the extent absolutely necessary".[7]

  1. Lavallee, Rackel & Heintz v Canada (Attorney General); White, Ottenheimer & Baker v Canada (Attorney General); R v Fink, 2002 SCC 61 (CanLII), [2002] 3 SCR 209, per Arbour J at para 49
  2. Maranda v Richer, [2003] 3 SCR 193, 2003 SCC 67 (CanLII), per LeBel J at paras 14 to 20
  3. Festing v Canada (Attorney General), 2003 BCCA 112 (CanLII), per curiam at para 24
  4. R v Piersanti & Company, 2000 CanLII 17032 (ON CA), per curiam
  5. Dee v Her Majesty the Queen in Right of Canada, 2008 NBCA 10 (CanLII), per curiam
  6. Canada v Blood Tribe Department of Health, 2008 SCC 44 (CanLII), per Binnie J at para 17 and 30
  7. Blood Tribe, ibid. at para 30
    Descôteaux, supra at p. 875

Constitutionality of Code Provisions

Section 488.1 concerning search of law offices was found to be unconstitutional.[1]

Definitions
488.1 (1) In this section,

"custodian" means a person in whose custody a package is placed pursuant to subsection (2);

document, for the purposes of this section, has the same meaning as in section 321;

judge means a judge of a superior court of criminal jurisdiction of the province where the seizure was made;

"lawyer" means, in the Province of Quebec, an advocate, lawyer or notary and, in any other province, a barrister or solicitor;

"officer" means a peace officer or public officer.

Examination or seizure of certain documents where privilege claimed
(2) Where an officer acting under the authority of this or any other Act of Parliament is about to examine, copy or seize a document in the possession of a lawyer who claims that a named client of his has a solicitor-client privilege in respect of that document, the officer shall, without examining or making copies of the document,

(a) seize the document and place it in a package and suitably seal and identify the package; and
(b) place the package in the custody of the sheriff of the district or county in which the seizure was made or, if there is agreement in writing that a specified person act as custodian, in the custody of that person.

Application to judge
(3) Where a document has been seized and placed in custody under subsection (2), the Attorney General or the client or the lawyer on behalf of the client, may

(a) within fourteen days from the day the document was so placed in custody, apply, on two days notice of motion to all other persons entitled to make application, to a judge for an order
(i) appointing a place and a day, not later than twenty-one days after the date of the order, for the determination of the question whether the document should be disclosed, and
(ii) requiring the custodian to produce the document to the judge at that time and place;
(b) serve a copy of the order on all other persons entitled to make application and on the custodian within six days of the date on which it was made; and
(c) if he has proceeded as authorized by paragraph (b), apply, at the appointed time and place, for an order determining the question.

Disposition of application
(4) On an application under paragraph (3)(c), the judge

(a) may, if the judge considers it necessary to determine the question whether the document should be disclosed, inspect the document;
(b) where the judge is of the opinion that it would materially assist him in deciding whether or not the document is privileged, may allow the Attorney General to inspect the document;
(c) shall allow the Attorney General and the person who objects to the disclosure of the document to make representations; and
(d) shall determine the question summarily and,
(i) if the judge is of the opinion that the document should not be disclosed, ensure that it is repackaged and resealed and order the custodian to deliver the document to the lawyer who claimed the solicitor-client privilege or to the client, or
(ii) if the judge is of the opinion that the document should be disclosed, order the custodian to deliver the document to the officer who seized the document or some other person designated by the Attorney General, subject to such restrictions or conditions as the judge deems appropriate,

and shall, at the same time, deliver concise reasons for the determination in which the nature of the document is described without divulging the details thereof.
Privilege continues
(5) Where the judge determines pursuant to paragraph (4)(d) that a solicitor-client privilege exists in respect of a document, whether or not the judge has, pursuant to paragraph (4)(b), allowed the Attorney General to inspect the document, the document remains privileged and inadmissible as evidence unless the client consents to its admission in evidence or the privilege is otherwise lost.
Order to custodian to deliver
(6) Where a document has been seized and placed in custody under subsection (2) and a judge, on the application of the Attorney General, is satisfied that no application has been made under paragraph (3)(a) or that following such an application no further application has been made under paragraph (3)(c), the judge shall order the custodian to deliver the document to the officer who seized the document or to some other person designated by the Attorney General.
Application to another judge
(7) Where the judge to whom an application has been made under paragraph (3)(c) cannot act or continue to act under this section for any reason, subsequent applications under that paragraph may be made to another judge.
Prohibition
(8) No officer shall examine, make copies of or seize any document without affording a reasonable opportunity for a claim of solicitor-client privilege to be made under subsection (2).
Authority to make copies
(9) At any time while a document is in the custody of a custodian under this section, a judge may, on an ex parte application of a person claiming a solicitor-client privilege under this section, authorize that person to examine the document or make a copy of it in the presence of the custodian or the judge, but any such authorization shall contain provisions to ensure that the document is repackaged and that the package is resealed without alteration or damage.
Hearing in private
(10) An application under paragraph (3)(c) shall be heard in private.
Exception
(11) This section does not apply in circumstances where a claim of solicitor-client privilege may be made under the Income Tax Act or under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.
R.S., 1985, c. 27 (1st Supp.), s. 71; 2000, c. 17, s. 89; 2001, c. 41, s. 80.


CCC

  1. Lavallee, Rackel & Heintz

Seizing and Vetting Privileged Documents

It is the "court's responsibility to ensure that any privilege claim is properly reviewed and evaluated". For that reason a referee/trustee should not be the one who makes the decision on whether a document is privileged.[1]

The use of an adversarial investigative unit as "clean team" to review records for privilege, may offend the "appearance of fairness and impartiality".[2]The starting point should be to consider retaining someone who is "independent of the interested parties".[3] Exception could be made to avail of a "particular and unique expertise that would be valuable in examining the seized material". However, "appropriate safeguards" should be considered.[4]

  1. R v Law Office of Simon Rosenfeld, 2003 CanLII 13453 (ON SC), per Nordheimer J
    R v Hanington, 2006 ABQB 378 (CanLII), per Veit J at para 16
  2. United States v Equinix Inc., 2017 ONCA 260 (CanLII), per Doherty JA at par 30
  3. Equinix, ibid. at para 31
  4. Equinix, ibid. at para 32

Computer-related Search Issues

General Principles

See also: Special Search Warrant Issues

Search warrants under s. 487 are the most typical manner of authorizing an officer to examine the contents of a computer.[1]

  1. R v Blazevic, 2011 ONSC 7549 (CanLII), at para 32, ("the police have the right to search computers with a search warrant under s. 487 of the Criminal Code to assist them in uncovering evidence associated with an offence.")

Warrant Issues

Single Warrant for Multiple Zones of Privacy

A residential search warrant that authorizes the seizure of computer devices for its evidential value can also operate as an judicial authorization for the examination of the device.[1]

Due to the enhanced privacy interest, the authorization must specifically authorize the seizure of a computer before they can search it. The authorization for the device cannot be by implication.[2]

If a computer is found during a search under a warrant does not authorize the search of a computer, it can be seized until a computer search warrant is obtained.[3]

The initial seizure of the device and the later forensic examination is a separate police activity.[4]

Where a computer device is lawfully seized, the police are permitted to make a forensic copy of the data.[5]

  1. R v Vu, 2013 SCC 60 (CanLII)
    see also R v Ballendine, 2011 BCCA 221 (CanLII)
    c.f. R v Jones, 2011 ONCA 632 (CanLII)
  2. R v Vu 2013 SCC 60 (CanLII), [2013] S.C.J. No. 60 at para 3 ("...the requirement of specific, prior authorization means that if police intend to search computers found within a place with respect to which they seek a warrant, they must satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for.")
    R v Butters, 2014 ONCJ 228 (CanLII), at para 25 aff'd 2015 ONCA 783 (CanLII)
  3. R v Vu, [2013] 3 SCR 657, 2013 SCC 60 (CanLII), at para 49
  4. R v Barwell, [2013] OJ 3743(*no CanLII links) at para 18
  5. R v Eddy, 2016 ABQB 42 (CanLII) at paras 49 to 50

Search of Third Party Devices for Communications

The privacy rights follow and apply to "electronic conversations" whether or not stored on the sender's device. Accordingly, a communication, as it exists on a third-party devices, may be protected under s. 8 of the Charter.[1]

Search of an Electronic Conversation by Consent
There is some suggestion that a conversation may be accessible by the police without warrant on consent of one of the parties to that conversation.[2] The search of a facebook conversation with consent of one of the parties did not require a warrant.[3]

  1. R v Marakah, 2017 SCC 59 (CanLII)
  2. R. v. Reeves, 2017 ONCA 365 (CanLII) per LaForme JA, (leave to appeal to S.C.C. granted, Docket 37676) - relating to a search of the family computer on consent of wife
  3. R v Cairns, 2018 ONSC 6411(link pending), per Sweeny J

A "Locker Warrant"

There is some division in the case law in whether proper means of authorizing the examination a device lawfully seized and stored in an evidence locker.[1] There is a line of cases that suggest that the proper means of examining the device is to ask for a "locker warrant." [2]

  1. R v Townsend, 2017 ONSC 3435 (CanLII) at paras 61 to 73
  2. R v Eddy, 2016 ABQB 42 (CanLII), 2016 D.T.C. 5032 (Alta. Q.B.), per Rooke ACJQB
    R v Nurse, 2014 ONSC 1779 (CanLII) per Coroza J
    R v Barwell, [2013] O.J. No. 3743 (Ont. C.J.) per Paciocco J

Timing of Forensic Examination

A computer held under a s. 490 warrant can be examined at any time irrespective of the time specified in the warrant.[1]

  1. R v Nurse, 2014 ONSC 1779 (CanLII) at pars 41 to 49
    R v Rafferty, 2012 ONSC 703 (CanLII) at para 39 to 48
    R v Weir, 2001 ABCA 181 (CanLII) at paras 18 to 19
    R v Ballendine, 2011 BCCA 221 (CanLII) at paras 64 to 70

Sufficiency of Computer Evidence

IP Address and RPG to Search
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.[1]

  1. see R v Weir 2001 ABCA 181 (CanLII), 156 CCC (3d) 188 (ABCA): ("While it is possible that the computer may have been at a different location than the billing address, it was not unreasonable to conclude that something as sensitive as child pornography would be kept on a computer in a person’s home.")

Manner of Search

When searching a computer, the manner of the search must be "reasonable" and is subject to implied restrictions.[1]

It is not permissible for police examiners to "scour the devices indiscriminately". They must "adhere to the rule that the manner of the search must be reasonable."[2]

The examiners should not conduct full "data dump" of the entire contents of the device and then simply give the entirety of the materials extracted to the investigator where they have the ability to narrow the scope of their search to better comply with the authorization.[3]

Limitations on search are guided by the type of evidence being sought, not any particular file format or file name.[4] Limitations based on locations within the device are not practical.[5] Examiners are entitled to examine any file or folder, in at least a cursory manner, to determine whether they are likely to contain evidence of the type they are seeking.[6]

Search Protocols
There is no need for the computer search warrant to set out a search "protocol" to limit what can be examined in the computer.[7]

  1. R v Vu, [2013] 3 SCR 657, 2013 SCC 60 (CanLII) at para 61
  2. Vu, ibid. at para 61
    R v Jones, 2011 ONCA 632 (CanLII) at para 42
    R v Fearon, [2014] 3 SCR 621, 2014 SCC 77 (CanLII) at para 20
    R v Nurse and Plummer, 2014 ONSC 5989 (CanLII) at paras 24, 34
  3. R v Nurse, 2014 ONSC 5989 (CanLII)
  4. Jones, supra at para 43
    see also R v Rafferty, 2012 ONSC 703 (CanLII)
  5. R v Cross, 2007 CanLII 64141 (ON SC), [2007] OJ 5384 (ONSC)
  6. Jones, supra at para 44
  7. Vu, ibid. at para 59 ("...my view is that search protocols are not, as a general rule, constitutionally required for pre-authorization of computer searches.")

Discovery of a New Offence

When executing a search warrant in relation to a certain offence and the examiner discovers evidence of another crime, the discovered evidence is admissible, but any further searches for further evidence of the new offence must be done after applying for a new warrant.[1]

Where a new authorization is needed, the proper procedure is to apply for a search warrant and not a general warrant.[2]There is nothing wrong with getting a second search warrant for a device that has already been seized and searched.[3]

  1. R v Jones, 2011 ONCA 632 (CanLII)
    R v Vu, 2011 BCCA 536 (CanLII)
  2. R v KZ, 2014 ABQB 235 (CanLII), at para 32 - Note however that this case considers "computers to be "places" of search rather than the "thing" of search within the meaning of s. 487, which is somewhat contrary to numerous other cases
  3. KZ, ibid. at para 40

Child Pornography

See also: Child Pornography (Offence)

The computer search warrant of a computer permitting the examination of the computer for specific types of child pornography, does not allow the analyst to examine all images.[1] The police should be limited to images containing the keywords and associated range of dates.

For details on the issue of dated information regarding the presence of CP on a computer, see Information to Obtain a Search Warrant#Currency of Information.

  1. R v Sop, 2014 ONSC 4610 (CanLII)

Search for Data Stored Outside of Computer

There is some suggestion that s. 487(2.1) and (2.2) permits a search of a computer to include a search of data stored off-site.[1]

487.
...
Operation of computer system and copying equipment
(2.1) A person authorized under this section to search a computer system in a building or place for data may

(a) use or cause to be used any computer system at the building or place to search any data contained in or available to the computer system;
(b) reproduce or cause to be reproduced any data in the form of a print-out or other intelligible output;
(c) seize the print-out or other output for examination or copying; and
(d) use or cause to be used any copying equipment at the place to make copies of the data.

Duty of person in possession or control
(2.2) Every person who is in possession or control of any building or place in respect of which a search is carried out under this section shall, on presentation of the warrant, permit the person carrying out the search

(a) to use or cause to be used any computer system at the building or place in order to search any data contained in or available to the computer system for data that the person is authorized by this section to search for;
(b) to obtain a hard copy of the data and to seize it; and
(c) to use or cause to be used any copying equipment at the place to make copies of the data.

...
R.S., 1985, c. C-46, s. 487; R.S., 1985, c. 27 (1st Supp.), s. 68; 1994, c. 44, s. 36; 1997, c. 18, s. 41, c. 23, s. 12; 1999, c. 5, s. 16; 2008, c. 18, s. 11.


CCC

Jurisdiction
Generally speaking, where data is stored in a foreign country but is readily accessible through a network within the country, the location of the original data is irrelevant.[2]


  1. R v Vu, 2011 BCCA 536 (CanLII) at para 73 - obiter appealed on other issues to 2013 SCC 60 (CanLII)
  2. eBay Canada Ltd. v. M.N.R., [2010] 1 FCR 145, 2008 FCA 348 (CanLII), (the court of appeal stated “The location of the servers was irrelevant because electronically stored information relating to the PowerSellers was readily, lawfully, and instantaneously available in a variety of places to the appellants in Canada.”)

Police Undercover Investigations

See also: Wiretaps

The seizure of historical text messages will not be considered an "interception" requiring a Part VI wiretap warrant.[1]

An undercover peace officer posing as an underage officer does not amount to an intercept.[2]

The fact that the sender was under the mistaken belief as to the identity of the recipient does not amount an "interception".[3]

  1. R v Didechko, 2015 ABQB 642 (CanLII)
    R v Vader, 2016 ABQB 309 (CanLII)
    R v Rideout, 2016 CanLII 24896 (NL SCTD)
    R v Jones, 2016 ONCA 543 (CanLII)
    R v Scott, 2015 MBQB 87 (CanLII)
    R v Mills, 2017 NLCA 12 (CanLII) leave to appeal granted 2017 CanLII 84238 (SCC)
    c.f. R v Croft, 2015 ABQB 24 (CanLII)
  2. R v Allen, 2017 ONSC 1712 (CanLII)
    R v Graff, 2015 ABQB 415 (CanLII)
    R v Ghotra, [2015] OJ No 7253 (ONSC)(*no CanLII links)
  3. R v Mills, supra

Disclosing Passwords

It remains an open question whether it is possible to use a general warrant to compel a person to disclose their device password.[1]

Evidence

Operation of a Computer Device
It should not be necessary to have the investigator to give details on the "basic functions" of computer storage devices. Computer devices are to be treated as appliance and so no need of need of proof is necessary to establish basic functionality.[2]

  1. In Re: Application for a General Warrant and s. 487.02 Assistance Order for Eric Talbot (2017)
  2. R v Wonitowy, 2010 SKQB 346 (CanLII) at para 46

Canadian Border Searches

There are two sources of authority for a warrantless search of an electronic device.

Section 99(1)(a) of the Customs Act states in part that:

Examination of goods
99 (1) An officer may

(a) at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts;


...
R.S., 1985, c. 1 (2nd Supp.), s. 99; 1988, c. 65, s. 79; 2001, c. 25, s. 59; 2017, c. 7, s. 52.


Customs Act

Section 139(1) of the Immigration and Refugee Protection Act states in part that:

Search
139 (1) An officer may search any person seeking to come into Canada and may search their luggage and personal effects and the means of transportation that conveyed the person to Canada if the officer believes on reasonable grounds that the person

(a) has not revealed their identity or has hidden on or about their person documents that are relevant to their admissibility; or
(b) has committed, or possesses documents that may be used in the commission of, an offence referred to in section 117, 118 or 122.


...


IRPA

"Goods" Under Customs Act

The term "goods" is defined in s. 2(1) of the Customs Act as "conveyances, animals and any document in any form." This includes information found on computers and cellphones.[1]

This can include any data that is in "actual possession of or in accompanying baggage of traveller at time they arrive at border and commence dealings with customs officers", but does not include records stored remotely and accessible from the device.[2]

Expectation of Privacy
International travelers have a diminished expectation of privacy while crossing international borders.[3]

Warrantless Search of Phones
It has been found that warrantless searches of phones are permitted at borders.[4]

It is not necessary that the border agent first form reasonable grounds before engaging in such a "routine search" of electronic devices.[5]

  1. R v Buss, 2014 BCPC 16 (CanLII)
    R v Moroz, 2012 ONSC 5642 (CanLII)
    R v Whittaker, 2010 NBPC 32 (CanLII)
  2. R v Gibson, 2017 BCPC 237 (CanLII)
  3. R v Simmons, [1988] 2 SCR 495, 1988 CanLII 12 (SCC)
  4. Buss, supra
    Moroz, supra
    Whittaker, supra
  5. R v Sekhon, 2009 BCCA 187 (CanLII) per Ryan JA
    R v Leask, 2008 ONCJ 25 (CanLII) per Nadel J
    See CBSA policy on electronic devices: OB PRG-2015-31

Sealing and Unsealing Warrants

General Principles

Once a judicial authorization is executed (be it a warrant, production order or otherwise), the authorization and the supporting documents (usually the Information to Obtain) must be made available to the public unless the warrant is placed under a sealing order.[1]

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.

Once an order is made, it must be made public "unless an applicant seeking a sealing order can demonstrate that public access would subvert the ends of justice".[2]

Section 487.3 provides statutory authority for a judge or justice to issue a sealing order:

Order denying access to information used to obtain a warrant or production order
487.3 (1) A judge or justice may, on application made at the time of issuing a warrant under this or any other Act of Parliament or a production order under section 487.012 or 487.013, or of granting an authorization to enter a dwelling-house under section 529 or an authorization under section 529.4 or at any time thereafter, make an order prohibiting access to and the disclosure of any information relating to the warrant, production order or authorization on the ground that

(a) the ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) or the information might be used for an improper purpose; and
(b) the ground referred to in paragraph (a) outweighs in importance the access to the information.

...
1997, c. 23, s. 14, c. 39, s. 1; 2004, c. 3, s. 8.


CCC

Sealing orders are to be the exception to the rule of openness.[3]

It is the responsibility of the Attorney General to be the responding party to any application to unseal where privilege may be at issue.[4]

Confidential police investigations require "a high level of secrecy to be effective" at least until after the warrant is executed.[5] Once the search is complete the presumption moves to one of openness.[6]

Duty to Unseal is On the Crown
The burden is on the Crown to unsealing judicial authorization materials. This duty is part of the Crown's Stinchcombe disclosure obligations.[7]

Effect of Sealing Order
The predominant view suggests that sealing orders function as an order restricting access to the court file rather than as a confidentiality order.[8]

  1. Toronto Star Newspaper Ltd. v Ontario, 2005 SCC 41 (CanLII)
  2. Toronto Star Newspapers Ltd. v Ontario, ibid.
    Attorney General of Nova Scotia v MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175
  3. Application by the Winnipeg Free Press, 2006 MBQB 43 (CanLII) at para 10 per McKelvey SCJ
  4. Re Regina and Atout, 2013 ONSC 1312 (CanLII)
  5. Globe & Mail v Alberta, 2011 ABQB 363 (CanLII), at para 10
  6. Globe & Mail v Alberta, ibid. at para 10
  7. R v Osei, 2007 CanLII 5681 (ON SC)
  8. R. v. Moosemay, 2001 ABPC 156 (CanLII), at paras 19 to 31
    Konstan v Berkovits, 2016 ONSC 7958 (CanLII), per Myers J at paras 8 to 9
    Konstan v Berkovits, 2016 ONSC 3957 (CanLII) at para 10

Grounds to Sealing

See also: Open Court Principle and Statutory Publication Ban on Court Proceedings

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

487.3
...
Reasons
(2) For the purposes of paragraph (1)(a), an order may be made under subsection (1) on the ground that the ends of justice would be subverted by the disclosure

(a) if disclosure of the information would
(i) compromise the identity of a confidential informant,
(ii) compromise the nature and extent of an ongoing investigation,
(iii) endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used, or
(iv) prejudice the interests of an innocent person; and
(b) for any other sufficient reason.

...
1997, c. 23, s. 14, c. 39, s. 1; 2004, c. 3, s. 8.


CCC

There is a presumption in favour of access to information.[1]

Dagenais/Mentuck Test
The Dagenais/Mentuck test applies to sealing orders.[2] The test permits discretionary court orders prohibiting access to legal proceeding where:

  1. an order is necessary to prevent a "serious risk" to the "proper administration of justice" because "reasonably alternative measures will not prevent the risk"; and
  2. the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice

Proper Administration of Justice
The risk to "administration of justice" will include "real and substantial risk to the fairness of the trial".[3]

Other Options to Sealing
It is an error of law for the authorizing judge or justice to fail "to consider alternative measures short of a full-fledged non-access order".[4]

"ongoing investigation"
The risk posed to the investigation must be satisfied on a case-by-case basis and is not to be used as a class of prohibited records.[5] Generalized assertions of potential prejudice is insufficient.[6]

Denial of access cannot be granted on the basis that there is an "investigative advantage" to the police in having documents sealed.[7]

"innocent person"
Section 487.3(2)(iv) permits a court to seal a record where disclosure could "prejudice the interests of an innocent person".

"Innocent persons" include third parties whose premises have been searched and nothing was found.[8]This does not mean that where something is seized from the premises that they can no longer be innocent persons.[9]

Prejudice to innocent persons is "entitled to significant weight".[10]

The interests of "innocent persons" includes preventing an "innocent person subject to intense media scrutiny that may irreparably tarnish that person’s reputation".[11] Where the allegations found in the ITO may be "extremely harmful to [the] reputations" of innocent persons, including the suspect, then the public interest will be against releasing information identifying them.[12]

An "innocent person" does not include the accused as "reporting of ...evidence is a price" that they must pay for "insuring the public accountability of those involved in the administration of justice" once the accused has "surrendered to the judicial process".[13]

It is unsettled whether notice is required to be given to innocent third-parties with cases going both ways.[14]

Right to a Fair Trial
Releasing information regarding an ongoing investigation can be "highly prejudicial to a person's right to a fair trial".[15]

Release of certain types of "incriminating evidence" against the accused may result in such a prejudice as to be unfair to be released to the public.[16] Such evidence would have the effect of "place irreversible ideas in the minds of potential jurors that would prevent them from being impartial at trial, or that would make it impossible for them to distinguish between evidence heard during the trial and information acquired outside of the courtroom."[17]

There is suggestion that protecting of trial rights are better protected by a publication ban rather than a sealing order.[18]

Commercial Interests
A "real and substantial risk" to commercial interests of a company in revealing the allegations in the ITO may create a public interest in confidentiality.[19]

"any other sufficient reasons"
"Other sufficient reasons" within the meaning of s. 487.3 include "serious threat to trial fairness".[20]

Procedure
The applicant must be specific on the grounds of sealing, there must be "particularized grounds". Generalized assertions are not enough.[21]

Ruling
The Judge must give reasons for any decision to issue the sealing of a public record.[22]

  1. Phillips v Vancouver Sun, 2004 BCCA 14 (CanLII)
  2. Dagenais v Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 SCR 835
    R v Mentuck, 2001 SCC 76 (CanLII), [2001] 3 SCR 442
  3. Globe & Mail v Alberta, 2011 ABQB 363 (CanLII) at para 8
  4. R v CBC, 2008 ONCA 397 (CanLII), per Juriansz JA, at paras 18, 26
  5. R v Vice Media Canada Inc., 2016 ONSC 1961 (CanLII), at para 64
  6. Vice Media Canada, ibid. at para 66
  7. Toronto Star Newspapers Ltd v Ontario, [2005] 2 SCR 188, 2005 SCC 41 (CanLII), per Fish J ("...access to court documents cannot be denied solely for the purpose of giving law enforcement officers an investigative advantage...")
  8. Globe & Mail v Alberta, supra at para 16
    MacIntyre, supra
  9. Globe & Mail, supra at para 16
    Phillips v Vancouver Sun, supra
  10. Phillips v Vancouver Sun, supra, at para 66
  11. Globe & Mail v Alberta, 2011 ABQB 363 (CanLII) at para 15
  12. Globe & Mail v Alberta, ibid. at para 18
  13. R v DM, 1993 CAanLII 5661 (NSCA) per Kelly JA
  14. Vice Media Canada Inc, supra at para 73
    R v CBC, 2013 ONSC 6983 (CanLII), at paragraph 11
    R v Esseghaier, 2013 ONSC 5779 (CanLII) at para 160
  15. Globe & Mail v Alberta, ibid. at para 21
    Flahiff v Cour Du Québec, 1998 CanLII 13149 (QC CA), [1998] RJQ 327, 157 DLR (4th) 485, per Rothman JA, at pp. 19 to 20
  16. Flahiff, ibid. at p 91
    CBC, supra at paras 29 to 32
  17. CBC, supra at para 32
  18. CBC, supra at paras 43 to 46
  19. Globe & Mail v Alberta, supra at para 18
    Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41 (CanLII), [2002] 2 SCR 522
  20. Flahiff v Cour Du Québec, 1998 CanLII 13149 (QC CA)
  21. Toronto Star Newspapers Ltd v Canada, 2005 CanLII 47737 (ON SC) at paras 36 to 42
  22. CBC, supra at para 55

Sealing Procedure

487.3
...

Procedure
(3) Where an order is made under subsection (1), all documents relating to the application shall, subject to any terms and conditions that the justice or judge considers desirable in the circumstances, including, without limiting the generality of the foregoing, any term or condition concerning the duration of the prohibition, partial disclosure of a document, deletion of any information or the occurrence of a condition, be placed in a packet and sealed by the justice or judge immediately on determination of the application, and that packet shall be kept in the custody of the court in a place to which the public has no access or in any other place that the justice or judge may authorize and shall not be dealt with except in accordance with the terms and conditions specified in the order or as varied under subsection (4).
...
1997, c. 23, s. 14, c. 39, s. 1; 2004, c. 3, s. 8.


CCC


Unsealing

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

487.3
...
Application for variance of order
(4) An application to terminate the order or vary any of its terms and conditions may be made to the justice or judge who made the order or a judge of the court before which any proceedings arising out of the investigation in relation to which the warrant or production order was obtained may be held.
1997, c. 23, s. 14, c. 39, s. 1; 2004, c. 3, s. 8.


CCC

Unsealing Without Charges
Where a judicial authorization has been executed, an accused person is entitled to a properly vetted copy of the ITO even before charges are laid, however, a third party is not. However, before charge an accused must present some evidence that the authorization was obtained unlawfully (ie. by fraud, wilful non-disclosure or other abusive conduct) before disclosure will be permitted.[1] This rule applies whether it is a wiretap or a judicial authorization.[2]

  1. R v Paugh, 2018 BCPC 149 (CanLII) at para 8
    Michaud v. Quebec (AG), 1996 CanLII 167 (SCC), [1996] 3 SCR 3
  2. Paugh, supra at para 14

Vetting Procedure

Where unsealing an unvetted ITO, the court should follow the procedure set out in Garofoli:[1]

  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.

The application judge should begin by making inquiry into the reason that the Crown opposes the unsealing.[2] The Crown should give an unedited copy to the judge with details on what portion of the warrant is to be unsealed. [3]

  1. R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421
  2. R v Canadian Broadcasting Corporation, 2008 ONCA 397 (CanLII)
  3. CBC

Procedure for Confidential Informers

See also: Confidential Informers

Step 6 can be adapted for the circumstances of a confidential informer where the redacted ITO is insufficient on its face, but the Crown wishes to rely upon redacted information without revealing details of identity.[1]

The Crown must apply to the Court to have it consider the unredacted version, while the accused receives only a "judicial summary" of the excised material. The judicial summary "should attempt to ensure the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence, while still protecting the identity of the confidential informant."[2] The judge will give feed-back on any inadequacies of the judicial summary provided until such time as the draft satisfies the judge or the procedure is terminated by the Crown.[3]

Step 6 must balance the right to full answer and defence by testing the reliability of the informant's evidence and the need for confidentiality of the informant's identity.[4]


  1. R v Learning, 2010 ONSC 3816 (CanLII) at para 100 to 109
    R v Rocha, 2012 ONCA 707 (CanLII), 112 O.R. (3d) 742, at paras 54-59
  2. R v Prosser, 2014 ONSC 2645 (CanLII), at para 9
  3. e.g. Prosser, ibid. at paras 14 to 17
  4. Prosser, ibid. at para 11

Wiretaps

See also: Wiretaps

Sealing of Authorization

See also: Sealing and Unsealing Judicial Authorizations

Manner in which application to be kept secret
187 (1) All documents relating to an application made pursuant to any provision of this Part are confidential and, subject to subsection (1.1), shall be placed in a packet and sealed by the judge to whom the application is made immediately on determination of the application, and that packet shall be kept in the custody of the court in a place to which the public has no access or in such other place as the judge may authorize and shall not be dealt with except in accordance with subsections (1.2) to (1.5).
Exception
(1.1) An authorization given under this Part need not be placed in the packet except where, pursuant to subsection 184.3(7) or (8), the original authorization is in the hands of the judge, in which case that judge must place it in the packet and the facsimile remains with the applicant.
...
R.S., 1985, c. C-46, s. 187; R.S., 1985, c. 27 (1st Supp.), s. 24; 1993, c. 40, s. 7; 2005, c. 10, s. 24; 2014, c. 31, s. 10.

CCC

Unsealing of Authorization

Defence counsel may apply to the court under s. 187(1.4) to unseal to authorization. The section states:

187
...
Opening for further applications
(1.2) The sealed packet may be opened and its contents removed for the purpose of dealing with an application for a further authorization or with an application for renewal of an authorization.
Opening on order of judge
(1.3) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may order that the sealed packet be opened and its contents removed for the purpose of copying and examining the documents contained in the packet.
Opening on order of trial judge
(1.4) A judge or provincial court judge before whom a trial is to be held and who has jurisdiction in the province in which an authorization was given may order that the sealed packet be opened and its contents removed for the purpose of copying and examining the documents contained in the packet if

(a) any matter relevant to the authorization or any evidence obtained pursuant to the authorization is in issue in the trial; and
(b) the accused applies for such an order for the purpose of consulting the documents to prepare for trial.

Order for destruction of documents
(1.5) Where a sealed packet is opened, its contents shall not be destroyed except pursuant to an order of a judge of the same court as the judge who gave the authorization.
Order of judge
(2) An order under subsection (1.2), (1.3), (1.4) or (1.5) made with respect to documents relating to an application made pursuant to section 185 or subsection 186(6) or 196(2) may only be made after the Attorney General or the Minister of Public Safety and Emergency Preparedness by whom or on whose authority the application for the authorization to which the order relates was made has been given an opportunity to be heard.
Idem
(3) An order under subsection (1.2), (1.3), (1.4) or (1.5) made with respect to documents relating to an application made pursuant to subsection 184.2(2) or section 184.3 may only be made after the Attorney General has been given an opportunity to be heard.
Editing of copies
(4) Where a prosecution has been commenced and an accused applies for an order for the copying and examination of documents pursuant to subsection (1.3) or (1.4), the judge shall not, notwithstanding those subsections, provide any copy of any document to the accused until the prosecutor has deleted any part of the copy of the document that the prosecutor believes would be prejudicial to the public interest, including any part that the prosecutor believes could

(a) compromise the identity of any confidential informant;
(b) compromise the nature and extent of ongoing investigations;
(c) endanger persons engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used; or
(d) prejudice the interests of innocent persons.

Accused to be provided with copies
(5) After the prosecutor has deleted the parts of the copy of the document to be given to the accused under subsection (4), the accused shall be provided with an edited copy of the document. Original documents to be returned
(6) After the accused has received an edited copy of a document, the prosecutor shall keep a copy of the original document, and an edited copy of the document and the original document shall be returned to the packet and the packet resealed.
Deleted parts
(7) An accused to whom an edited copy of a document has been provided pursuant to subsection (5) may request that the judge before whom the trial is to be held order that any part of the document deleted by the prosecutor be made available to the accused, and the judge shall order that a copy of any part that, in the opinion of the judge, is required in order for the accused to make full answer and defence and for which the provision of a judicial summary would not be sufficient, be made available to the accused.
Documents to be kept secret — related warrant or order
(8) The rules provided for in this section apply to all documents relating to a request for a related warrant or order referred to in subsection 184.2(5), 186(8) or 188(6) with any necessary modifications.
R.S., 1985, c. C-46, s. 187; R.S., 1985, c. 27 (1st Supp.), s. 24; 1993, c. 40, s. 7; 2005, c. 10, s. 24; 2014, c. 31, s. 10.


CCC

Production Orders

See also: Production Orders

Order prohibiting disclosure
487.0191 (1) On ex parte application made by a peace officer or public officer, a justice or judge may make an order prohibiting a person from disclosing the existence or some or all of the contents of a preservation demand made under section 487.012 or a preservation or production order made under any of sections 487.013 to 487.018 during the period set out in the order.
Conditions for making order
(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.009 that there are reasonable grounds to believe that the disclosure during that period would jeopardize the conduct of the investigation of the offence to which the preservation demand or the preservation or production order relates.
Form
(3) The order is to be in Form 5.0091.
Application to revoke or vary order
(4) A peace officer or a public officer or a person, financial institution or entity that is subject to an order made under subsection (1) may apply in writing to the justice or judge who made the order  —  or to a judge in the judicial district where the order was made  —  to revoke or vary the order.
2014, c. 31, s. 20.


CCC

See Also

Types of Warrant

Section 487 Search Warrants

General Principles

A s. 487 search warrant authorizes, for a limited time, the "search" of a "place" for the purpose of "seizing" a "thing". Once the "things" are seized they are then ordered detained under a s. 490 detention order.

The face of the warrant is what empowers a peace officer to search the identified location for specified evidence.[1]

Relationship Between the Warrant and the ITO
The Information to Obtain (ITO) is the evidence that gives the issuing justice grounds to grant the order to search. [2] The ITO is not part of the warrant that the authorized officer is expected to examine. They only need to be familiar with the face of the order to understand the scope of the search.[3]

Proper interpretation can be done through use of the "fellow officer test", which asks whether a fellow officer would understand what is being sought and where the search is permitted based solely on reviewing the face of the warrant.[4]

Place
A search warrant for a "place" will generally give authority to also search places and receptacles in that place.[5]

  1. R v Townsend, 2017 ONSC 3435 (CanLII) at para 53
    Re Times Square Book Store and the Queen, 1985 CanLII 170 (ON CA), 21 CCC (3d) 503
    R v Parent, 1989 CanLII 217 (YK CA), 47 CCC (3d) 385
    R v Ricciardi, 2017 ONSC 2788 (CanLII)
    R v Merritt, 2017 ONSC 80 (CanLII), per F Dawson J
  2. Townsend, supra at para 53
  3. Townsend, ibid. at para 53
  4. Townsend, ibid. at para 53
    R v Raferty, 2012 ONSC 703 (CanLII) at para 103
  5. R v Vu, 2013 SCC 60 (CanLII) at para 39

Power to Authorize a Warrant

The section states:

Information for search warrant
487. (1) A justice who is satisfied by information on oath in Form 1 [see forms] that there are reasonable grounds to believe that there is in a building, receptacle or place

(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been* committed,
(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,
(c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or
(c.1) any offence-related property,

may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(d) to search the building, receptacle or place for any such thing and to seize it, and
(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1.

...
R.S., 1985, c. C-46, s. 487; R.S., 1985, c. 27 (1st Supp.), s. 68; 1994, c. 44, s. 36; 1997, c. 18, s. 41, c. 23, s. 12; 1999, c. 5, s. 16; 2008, c. 18, s. 11.
* [see below re Constitutionality]
[annotation(s) added]


CCC

Purpose of Search

The purpose of s. 487 warrants is the "allow the investigators to unearth and preserve as much relevant evidence as possible" by authorizing them "to locate, examine and preserve all the evidence relevant to events which may have given rise to criminal liability".[1]

  1. CanadianOxy Chemicals Ltd. v Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 SCR 743 at para 22

Test to Authorize a Search

See also: Reasonable and Probable Grounds

Section 487(1) requires that the "justice" be "satisfied by the information on oath" that there are "reasonable grounds to believe" that:[1]

  • there is a thing in a "building, receptacle or place";
  • the thing is:
    • "on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed" (487(1)(a)),
    • that for which "there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,"(487(1)(b))
    • that for which "there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant" (487(1)(c))
    • "offence-related property" (487(1)(c.1))

487Warrant.png

The warrant provisions of the Criminal Code also applies to all other federal statutes even those with search provisions. [2]

A warrant under section 486(1)(b) cannot authorize the search and seizure of "things... that are being sought as evidence in respect of the commission, suspected commission or intended commission of an offence..."[3]

Medical staff who inform the police of the existence of a blood sample taken from the suspect patient is not violating confidentiality of medical records.[4]

"Justice"
A "justice" is defined in s. 2 of the Code as referring to provincial court level judges.[5]

  1. see also R v Ha, 2009 ONCA 340 (CanLII)
    Canadian Broadcasting Corp. v Lessard, 1991 CanLII 49 (SCC), [1991] 3 SCR 421
  2. R v Multiform Manufacturing Co., 1990 CanLII 79 (SCC), [1990] 2 SCR 624
  3. R v Branton, 2001 CanLII 8535 (ON CA) at para 35
  4. R v Decap, 2003 SKQB 301 (CanLII)
  5. Definition of Judicial Officers and Offices

"Building, Receptacle or Place" to be Searched

Section 487 permits the search of "a building, receptacle or place".

Motor Vehicles
The motor vehicle can be the thing to be searched for or the place to be searched, depending on the circumstances. Where it is the thing to be searched for, it can be seized by police and then subject to any examinations necessary. Where it is the place to be searched, it must be returned to the older immediately on completion of the search.[1]

  1. R v Rafferty, 2012 ONSC 703 (CanLII) at para 48

"Thing" to be Searched For

A search warrant can only be used to seize tangible objects. This means that intangibles, such as money, are not applicable.[1]

Computer Devices
A computer can be a "thing" and not a "place" within the meaning of s. 487.[2] This is generally since a "thing" is generally a corporeal object and the data on the machine does not meet that definition. The computer, once seized, can be examined pursuant to police access rights to items held under s. 490.

Articles Worn by Person
Such a warrant, however, cannot be used to search a person or seize anything on a person.[3]

Finger Prints
Finger prints cannot be taken with a 487 warrant.[4]

Foreign Objects Found inside a Person
A bullet found inside an accused person cannot be included.[5]

DNA on Bandages
A standard warrant may be used to seize a disposed bandage in order to perform a DNA test on it. DNA warrant is not necessary.[6] However, where the bandage is still being worn at the time there is suggestion that a 487 warrant would not be valid and a DNA warrant would be the correct route.[7]

Blood Vials
A warrant may be used to seize blood vials taken from the accused. There is no need to exhaust other options such as making a blood demand first.[8]

Motor Vehicles
The motor vehicle can be the thing to be searched for or the place to be searched, depending on the circumstances. Where it is the thing to be searched for, it can be seized by police and then subject to any examinations necessary. Where it is the place to be searched, it must be returned to the older immediately on completion of the search.[9]

  1. R v Bank du Royal Du Canada (1985) 18 CCC (3d) 44(*no CanLII links)
  2. R v Barwell [2013] O.J. No. 3743 (C.J.)(*no CanLII links) per Paciocco J.
    R v Weir, 2001 ABCA 181 (CanLII) at para 19
    R v Fedan, 2016 BCCA 26 (CanLII) at para 73 - airbag data recorder
    c.f. R v KZ, 2014 ABQB 235 (CanLII)
  3. R v Legere, 1988 CanLII 129 (NB CA)
  4. R c Bourque, 1995 CanLII 4764 (QC CA)
  5. R v Laporte (1972) 8 CCC (2d) 343, 1972 CanLII 1209 (QC CS), per Hugessen J
  6. R v Kaba, 2008 QCCA 116 (CanLII) at para 32
  7. R v Miller, 1987 CanLII 4416 (ON CA), (1987) 62 O.R. (2d) 97, 38 CCC (3d) 252, - bandage not permitted while person is wearing it
  8. R v O’Brien, 2005 CarswellOnt 10009(*no CanLII links) aff’d 2007 ONCA 138 (CanLII)
  9. R v Rafferty, 2012 ONSC 703 (CanLII) at para 48

Relationship Between "Thing" and Offence

Section 487 sets out four types of relationships between the thing to be searched for and seized and the offence investigated. They are:

  1. "anything on or in respect of which an offence ... has been ... committed" (s. 487(1)(a))
  2. "anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence..." (s. 487(1)(b))
  3. "anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant" (s. 487(1)(c))
  4. "any offence-related property" (s. 487(1)(c.1))

Constitutionality
The clause "suspected to have been" made in s. 487(1)(a) is likely to be found unconstitutional and should be read out of the section.

"Will Afford Evidence"

The phrase "will afford evidence" is treated as interchangable with "may be obtained", "could be obtained", "will be obtained", and "may afford evidence". They all will require "credibility based probability" that the thing sought will be found.[1]

  1. R v Brand and Ford, 2006 BCSC 305 (CanLII), at para 28, 32 to 33

Power to Order

Section 487(1) permits the justice, once satisfied he is able to authorize a search warrant, may order a "peace officer" to "search the building, receptacle or place for any such thing and to seize it", and, "as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice".

Content of the 487 Warrant

A the body of the warrant must meet several requirements to be facially valid. There must be:[1]

  • an authorized officer;
  • an authorized device, investigative technique, procedure, or act; and
  • private property to be searched or seized.

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.[2] 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."[3]

There is no need to specify the identity of the suspect, and simply refer to them as "persons unknown".[4]

Forms
Section 487(3) requires that Form 5 be used in a search warrant:

487...
Form
(3) A search warrant issued under this section may be in the form set out as Form 5 in Part XXVIII, varied to suit the case.
...
1993, c. 40, s. 15; 1997, c. 18, s. 42, c. 23, s. 13.


CCC

Types of Devices to be Searched
Where a warrant authorizes a residential search for documents without mention of whether computers are included, may still permit the officers to search computer equipment so long as they are only searching for the documents authorized by the warrant. No special mention of computers is needed.[5]

  1. see language of s.487.01
  2. R v Parent, 1989 CanLII 217 (YK CA) - no address whatsoever on warrant, but address present in ITO
  3. Parent
  4. R v Sanchez, 1994 CanLII 5271 (ON SC)
  5. R v Vu, 2011 BCCA 536 (CanLII)

Name of Authorized Officer

A warrant under 487 and 487.1 need not state in the body of the warrant the identity of the officer authorized to execute the search. Failure to do so will not be fatal.[1]

  1. R v Lucas, 2009 CanLII 43418 (ON SC), [2009] OJ No. 5333 (Ont Sup Ct J) at paras 9 – 12
    R v Benz, (1986), 27 CCC (3d) 454 (Ont. C.A.), 1986 CanLII 4641 (ON CA), per MacKinnon ACJO
    R v KZ, 2014 ABQB 235 (CanLII)

Description of Premises to be Searched

A search warrant must specify the premises that is to be searched.[1]

A warrant of a premises must accurately describe the location to be searched. If it fails to do so the warrant will be invalid.[2]

If the address in the warrant is wrong, the search becomes warrantless.[3]

See also: Information to Obtain a Search Warrant#Error in Address

  1. s. 487(1)
    R v McGregor (1985), 23 CCC 266 (QB)(*no CanLII links)
  2. Re McAvoy (1970), 12 C.R.N.S. 56 (NWTSC)(*no CanLII links) at para 57 ("To avoid search warrants becoming an instrument of abuse it has long been understood that if a search warrant ... fails to accurately describe the premises to be searched ... then it will be invalid")
  3. see R v Krammer, 2001 BCSC 1205 (CanLII), [2001] BCJ No. 2869 (S.C.)
    R v Silvestrone, 1991 CanLII 5759 (BC CA), (1991), 66 CCC (3d) 125 (BCCA), at pp. 130-132

Special Use Cases

It is permissible to use a s. 487 warrant to re-seize things in the custody of police under a s. 490 detention order in order to authorize additional examination.[1]

Computer Searches
Computers are an exception to the receptacle rule as they are "to a certain extent" a separate place that require a separate authorization.[2] This is because of the high degree of privacy that exists in a home computer and the immense amount of information that they can contain, including information that is automatically generate by the user's activities, and the enduring nature of the data.[3]

A residential warrant that contemplates the seizure of a computer authorizes the police to examine its data.[4]

  1. R v Stillman, 1997 CanLII 384 (SCC), [1997] 1 SCR 607 at para 128
    R v Jones, 2011 ONCA 632 (CanLII) at para 36
    R v Cole, 2012 SCC 53 (CanLII) at para 65 ("The police may well have been authorized to take physical control of the laptop and CD temporarily, and for the limited purpose of safeguarding potential evidence of a crime until a search warrant could be obtained. " [emphasis removed])
  2. R v Vu, [2013] 3 SCR 657, 2013 SCC 60 (CanLII) at paras 51, 54, 39, 46, and 47
  3. Vu at paras 40 to 43
  4. Vu, ibid.
    R v Telus Communications Co, [2013] 2 SCR 3, 2013 SCC 16 (CanLII) - per Cromwell J (dissenting on another issue)

Manner of Search

See also: Execution of Search Warrants and Special Search Warrant Issues

Searches Intruding on Solicitor-Client Privilege

See also: Searches Intruding on Solicitor-Client Privilege


When searching a lawyer's office, the police have a duty to minimize which requires:[1]

  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

Where police can anticipate the search of a location where they have reasonable grounds to believe there may be solicitor-client privilege, the warrant and ITO should include special provisions to protect solicitor-client privilege.[2]

  1. Maranda v Richer, 2003 SCC 67 (CanLII), [2003] 3 SCR 193
  2. e.g. R v Schultz, 2018 ONCA 598 (CanLII) at para 5

Computer Search

See Also

General Warrants

General Principles

See also: Section 487 Search Warrants

Section 487.01(1) provides a provincial or superior court judge to grant police the 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.[1]

General warrants were added to the Code in 1993, Bill-109 which added s. 487.01 to permit further types of investigative techniques to be used.

Information for general warrant
487.01(1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 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.
...
1993, c. 40, s. 15; 1997, c. 18, s. 42, c. 23, s. 13.


CCC

A general warrant authorizes the use of "any device or investigative technique or procedure or do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure." The pre-conditions require that:[2]

  1. There are reasonable grounds to believe an offence has been or will be committed and information concerning the offence will be obtained through the use of the technique, procedure or device or doing of the thing.
  2. It is in the best interests of the administration of justice to issue the warrant.
  3. There is no other provision in the Criminal Code or any other Act of Parliament that would provide for the warrant, authorization or order permitting the technique to be done.

Warrants under s. 487.01 are unique from all warrants. They do not have any special or procedural limitations. They authorize any police activity that would intrude on s. 8 rights.[3]

The phrase "information concerning the offence" should be "given the broadest possible interpretation" and "includes whatever is necessary to get at the truth and properly and fairly dispose of the case."[4]

  1. R v Li, 2013 ONCA 81 (CanLII), per Watt JA, at para 92 - s.487.01 was created as a response to the findings of R v Wong, 1990 CanLII 56 (SCC), [1990] 3 SCR 36, per La Forest J
  2. R v KZ, 2014 ABQB 235 (CanLII), per Hughes J, at para 22
  3. R v Ha, 2009 ONCA 340 (CanLII), per MacPherson JA at para 24, 25
  4. R v Ongley, [2003] OJ No 3934 (ONSC) (*no CanLII links) , per Langdon J at para 13

"No Other Provision"

Interpreting the meaning of s. 487.01(1)(c) should focus "on the particular investigative technique or procedure that the police seek to utilize and whether it can properly be authorized by another provision in the Code or any other federal statute". [1] The provision should be broad in meaning to prevent presumptive use of these warrants. [2] They should be used "sparingly".[3]

The general warrant must not be used to "circumvent other authorization provisions that are available but contain more onerous pre-conditions".[4]

A "covert entry and search" are governed by 487.01.[5]

A general warned can authorize multiple "covert entries and searches on private property".[6]

A general warrant may be granted to mimic a theft to seize the accused luggage which contained drugs.[7] In circumstances where persons' safety may be at risk, it is necessary for those risks to be addressed in the ITO.[8]

Where a Part VI wiretap warrant is available there can be no general warrant.[9]

  1. R v Telus Communications, 2013 SCC 16 (CanLII), per Abella J at para 17
  2. Telus, ibid. at para 19
  3. Telus, ibid.
    R v Christiansen, 2017 ONCA 941 (CanLII), per curiam at para 10 - re using General Warrant when CDSA warrant would have required a higher standard of proof
  4. Telus, ibid.
  5. R v Ha, 2009 ONCA 340 (CanLII), per MacPherson JA, at para 38
  6. Ha, ibid.
  7. R v Knight, 2008 NLCA 67 (CanLII), per Welsh JA
  8. Knight, ibid.
  9. Telus, ibid.

Procedure

Notice Requirements

487.01 (1) ...
Notice after covert entry
(5.1) A warrant issued under subsection (1) that authorizes a peace officer to enter and search a place covertly shall require, as part of the terms and conditions referred to in subsection (3), that notice of the entry and search be given within any time after the execution of the warrant that the judge considers reasonable in the circumstances.
Extension of period for giving notice
(5.2) Where the judge who issues a warrant under subsection (1) or any other judge having jurisdiction to issue such a warrant is, on the basis of an affidavit submitted in support of an application to vary the period within which the notice referred to in subsection (5.1) is to be given, is satisfied that the interests of justice warrant the granting of the application, the judge may grant an extension, or a subsequent extension, of the period, but no extension may exceed three years.
...
1993, c. 40, s. 15; 1997, c. 18, s. 42, c. 23, s. 13.


CCC

Telewarrant

487.01
...
Telewarrant provisions to apply
(7) Where a peace officer believes that it would be impracticable to appear personally before a judge to make an application for a warrant under this section, a warrant may be issued under this section on an information submitted by telephone or other means of telecommunication and, for that purpose, section 487.1 applies, with such modifications as the circumstances require, to the warrant.
1993, c. 40, s. 15; 1997, c. 18, s. 42, c. 23, s. 13.


CCC

Different Territorial Divisions

See also: Applying for Judicial Authorizations#Different Territorial Divisions

The rules concerning territorial divisions for s. 487 warrants equally apply to general warrants:

487.01 (1) ...
Provisions to apply
(6) Subsections 487(2) and (4) apply, with such modifications as the circumstances require, to a warrant issued under subsection (1).
...
1993, c. 40, s. 15; 1997, c. 18, s. 42, c. 23, s. 13.


CCC

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,[1] but a camera filming the inside of a dwelling would need one.

Section 487.01 addresses video surveillance:

487.01
...
Video surveillance
(4) A warrant issued under subsection (1) that authorizes a peace officer to observe, by means of a television camera or other similar electronic device, any person who is engaged in activity in circumstances in which the person has a reasonable expectation of privacy shall contain such terms and conditions as the judge considers advisable to ensure that the privacy of the person or of any other person is respected as much as possible.
Other provisions to apply
(5) The definition “offence” in section 183 and sections 183.1, 184.2 184.3 and 185 to 188.2, subsection 189(5), and sections 190, 193 and 194 to 194 apply, with such modifications as the circumstances require, to a warrant referred to in subsection (4) as though references in those provisions to interceptions of private communications were read as references to observations by peace officers by means of television cameras or similar electronic devices of active peace officers by means of television cameras or similar electronic devices of activities in circumstances in which persons had reasonable expectations of privacy.
...
1993, c. 40, s. 15; 1997, c. 18, s. 42, c. 23, s. 13.


CCC

A video camera requires a warrant where filming:

  • a hotel room [2]
  • a washroom stall [3]

Section 183 defines "offence" within the Wiretaps provisions.

  1. R v Esfahanian Ershad, 1991 CanLII 281 (BC SC), per Davies J
    R v Bryntwick, 2002 CanLII 10941 (ON SC), per Dunn J
  2. R v Wong, 1990 CanLII 56 (SCC), [1990] 3 SCR 36, per La Forest J
  3. R v Silva, 1995 CanLII 7242 (ON SC), per Zelinski J

Anticipatory Warrants

An anticipatory warrants are those "that may only be executed upon the fulfillment of certain pre-conditions".[1]

Anticipatory warrants can only be authorized as a general warrant under s. 487.01.[2] An anticipatory warrant to seized text messages from an telephone service provider has some support to require a general warrant as opposed to a wiretap warrant.[3]

  1. R v Brooks, (2003) 2003 CanLII 57389 (ON CA), 178 CCC (3d) 361, per Moldaver JA at para 20
  2. R v Cameron (1985), 1984 CanLII 474 (BC CA), 16 CCC (3d) 240 (BCCA), per Esson JA
    R v Lucas, 2014 ONCA 561 (CanLII), per curiam
  3. R v Telus, [2013] 2 SCR 3, 2013 SCC 16 (CanLII), per Abella J court divided whether it requires wiretap instead of general warrant

Other Circumstances

A 487.01 warrant may authorize an "covert" search. [1] This includes "covert" entries into a residence.[2]

It may also authorize the use of "vision enhancement equipment", including binoculars, night vision devices, video cameras, etc.[3]

Computer Searches
Where a search warrant is executed for a computer search and evidence of an unrelated offence is discovered, the proper procedure is to apply for a search warrant and not a general warrant.[4]

  1. R v Ha, 2009 ONCA 340 (CanLII), per MacPherson JA
  2. R v Shin, 2015 ONCA 189 (CanLII), per Gillese JA
  3. R v Li, 2013 ONCA 81 (CanLII), per Watt JA at para 72, 94
  4. R v KZ, 2014 ABQB 235 (CanLII), per Hughes J, at para 32

Seizure of Bodily Samples

Introduction

Bodily samples cannot be taken without a warrant where the subject does not consent.[1]

There are several methods of obtaining bodily samples:

  • general warrant (s.487);
  • DNA Sample (s.487.05);
  • blood sample demand (s.254(3));
  • DRE blood sample (s.254(3.4));
  • blood sample warrant (s.256);
  • bodily impressions (s. 487.092)

A bodily sample can also be obtained by consent.[2]

  1. R v Tomaso, (1989), 70 CR (3d) 152 (Ont. CA) (*no CanLII links)
  2. See Consent Search

General DNA Sample Seizure (s.487.05)

Blood Sample Seizure in Impaired Driving Investigations (256)

Body Print Impression Warrant (487.092)

Obtaining Blood Samples by General Warrant (487)

Where a nurse takes a blood sample from a patient as part of her regular course of duties, it is available to the police to obtain a warrant to seize the sample as evidence.

Blood taken by a nurse as part of hospital procedure will still be protected by an expectation of privacy.[1]

Where an officer directs the nurse to store a blood sample for a period beyond the time intended by the hospital, it will effectively enter into the custody of police.[2]

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