Full Text:Volume 3A

Volume III: Search and Seizure

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Preface

This text was written as a reference on the law of search and seizure in criminal law. The audience for this text will be mostly criminal law practitioners, police officers, and law students, who need a convenient way to look up principles and case law. Where possible there are links to cited cases on CanLII for ease of reference.

As of this writing, this text remains a work in progress. Errors and omissions should be expected and so it is always recommended that source materials be consulted to confirm the contents of these materials.

Organization of the Section

This section is set out in three parts. First part covers the basic elements that make up the rules of evidence, such as basis for accepting evidence, burdens and standards of proof, as well as shortcuts to proof.

The second part cover the types of evidence the law recognizes. Specifically, oral, document or real evidence. These chapters cover the requirements for these types of evidence to be accepted into evidence, including competency of witnesses and authentication of certain types of evidence.

The final part covers the many rules that limit or exclude evidence. This includes a variety of principles from opinion evidence, character evidence, hearsay, admissions, and privilege.

The Law of Search and Seizure

The law of search and seizure arises from s. 8 of the Charter which states:

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

– CCRF

The interpretation of this section includes but is not limited to general notions of privacy. It expands to a general objective of limiting state power.

Rights Against Search and Seizure

This page was last substantively updated or reviewed December 2022. (Rev. # 79439)

• < Search and Seizure

General Principles

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

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

– 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.

When Protections Engaged

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

Analysis

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

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".

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

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

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

Interpretation of Rights

All Charter rights, including those in s. 8, "must be broadly and liberally construed to effect its purpose".

Interpretation of s. 8 “must be capable of growth and development over time to meet new social, political, and historical realities often unimagined by its framers.“

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".

Duration of Protection

The rights under s. 8 exist for the full duration in which the evidence and derived information is in the possession of the state.

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.

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.

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.

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". It is a "shield against unjustified state intrusions" on a person's privacy.

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

Privacy is essential to "well-being of the individual" and is grounded in their "physical and moral autonomy". It has a profound significance for the public order."

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

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

It is for these reasons that the principle of reasonable expectation of privacy is a "normative rather than a descriptive standard". 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".

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

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

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

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

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.

Meaning of "Search"

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

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

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. The "zones" of privacy however are not strictly distinguished.

Residences

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

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

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.

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

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.More generally, it has been accepted that a "police officer may use a flashlight at night to observe activities or objects inside vehicles."

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

Person

A gun shot residue analysis on a suspect constitutes a search.

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

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

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. This is distinct from detection with the use of technology, such as a sniffer dog or a FLIR device.

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

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.

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.

Online

Where a police officer assumes the online account of a third-party known to the accused, and engages in conversation, that conversation is a "search"

The use of a screenshot tool to capture a electronic conversation that is legally viewable by police is not a search or seizure.

Meaning of "Seizure"

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

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

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

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

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".

The expropriation of property is not a "seizure".

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

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

Consent Seizure

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

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

Standing

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. 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.

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.

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. This will generally apply as well where the accused denies that it is his voice on a wiretap.

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.

State Actors or 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. Mere cooperation between the parties is not enough.

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

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

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

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".

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

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

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

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.

Schools

It is usually the case that principals have statutory duties under the provincial education acts to "maintain a safe school environment". 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".

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. The applicant must prove that the medical staff was otherwise acting as an agent before an intrusion on privacy can be found.

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.

See Also

• Seizure of Property
• Established Areas of Privacy
• Warranted Searches
• Warrantless Searches
  • Warrantless Search of Abandoned Property

Reasonable Expectation of Privacy

This page was last substantively updated or reviewed January 2023. (Rev. # 79439)

• < Search and Seizure

General Principles

The law imposes a spectrum of different levels of privacy depending on the circumstances. Where the the level is sufficiently low, police may be able to intrude on that privacy on a foundation of "reasonable suspicion". Where the privacy level is sufficient, the intrusion must be based on "reasonable belief".

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. The accused seeking to challenge a search or seizure must begin by establishing the existence of a s. 8 right by showing there is was a reasonable expectation of privacy.

Normative Standard

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

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

The 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."

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”.

Standard Varies on Facts, Subject-Matter, and Relationships

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".

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".

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

Purpose of Protections

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."

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

Broad Interpretation

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

Abandonment

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.

Zones of Protection

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

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

Personal Privacy

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

Courts have recognized the high value of personal privacy, including a person's body.

The connection between personal privacy and dignity is "especially palpable".

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

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

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

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.

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". It prohibits authorities from intruding on dwelling houses as well as other recognized zones of privacy. This has since been adopted into the common law of Canada and the Canadian Charter of Rights and Freedoms.

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".

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". Lesser places include, in descending order, of "perimeter space around the home", "commercial space", "private cars", schools, and prison.

There may exist territorial privacy in semi-public places, such as school hallways, depending on the circumstances.

Informational Privacy

The right to information relates to the rights of an individual to control when, how, and the extent of which information can be made available to others. It 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." It also includes information that, if disclosed, would compromise their "dignity, integrity and autonomy". It permits "individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others".

It is said to be at its "strongest" when it relates to "identity" including "lifestyle", "intimidate relations", "political or religious options".

Privacy as Anonymity

Informational privacy includes the concept of "secrecy and confidentiality", "privacy as control", and "privacy as anonymity."

"Totality of the Circumstances" Test

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

The "totality of the circumstances" has been described as having four lines of inquiry:

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

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". The test "needs to be tailored to the circumstances of the ...case." In practice, the factual circumstances engaging s. 8 will vary greatly.

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

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."

Presumptive Expectations

It is presumed, "unless the contrary is shown", that the information that exists in the home is regarded as private.

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. The objective component considers whether one ought to expect privacy and if so to what level.

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".

Subjective Component

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

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."

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

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

Factors to consider reasonableness are listed below.

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

Factors

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

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. 

Considerations for "Informational Privacy" Only

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

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

Consideration for Communications

There are factors that are often considered where the subject matter is a communication:

1. the place where the search occurred whether it be a real physical place or a metaphorical chat room;
2. the private nature of the subject matter;
3. control over the subject matter;
4. the nature of the investigative technique used by police,
5. the nature of the relationship between the communicants; and
6. policy considerations.

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."

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

Section 8 protects persons not places.

Illegal Objects

The fact that the target of the search is illegal does not render the expectation of privacy eliminated. The nature of privacy interests do not vary on whether they are masking legal or illegal activities. Analysis of whether or not there is a REP should be content neutral.

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". The main question is whether the information "tends to reveal intimate details of the lifestyle and personal choices of the individual".

Control

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

Third Party Seizure

Where a non-state actor discloses evidence to police there may be an intrusion on privacy. The third party cannot waive on behalf of the privacy-holder.

A third party is legally entitled to inform police of discovery of a crime and police are entitled to receive the information without a warrant.

Whether the third party "stole" the property or not is of limited impact on the assessment of privacy interests.

Delivery of evidence to a police station by a third party will generally not invoke a reasonable expectation of privacy or breach of the Charter.

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.

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

Public Spaces

Privacy cannot be protected where it can only be preserved by whispering.

Text messages

The focus of analysis of a text conversation is whether there was "potential" that the accused would share personal information with the other persons in the conversation. The actual content is not relevant.

The risk that the recipient may disclose the communications does not mean the sender assumes the risk of the state intercepting the communication.

There are not many other types of conversations other than text messages that offer privacy.

Established Areas of Privacy

• Established Areas of Privacy

See Also

• Warrant Searches
• Warrantless Searches
  • Warrantless Search of Abandoned Property

Established Areas of Privacy

This page was last substantively updated or reviewed July 2021. (Rev. # 79439)

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Introduction

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."

Zones of Privacy

• Established Areas of Territorial Privacy
• Established Areas of Informational Privacy
• Established Areas of Personal Privacy

Warrantless Searches

• < Search and Seizure
• < Warrantless Searches

Introduction

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

Generally speaking, a lawful search can only be done when under judicial authorization where it is feasible to get one.

Burden of Proof

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

Entry into a Residence

The Police cannot enter into a private dwelling without a warrant, consent of the homeower(s), or exigent circumstances.

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

• Charter Applications

Statutory Warrantless Search Powers

This page was last substantively updated or reviewed May 2021. (Rev. # 79439)

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• < Warrantless Searches

General Principles

The Parliament and legislatures of Canada have the ability to pass legislation that permits law enforcement and other agents of the state to warrantless searches. These powers must generally conform to the "reasonable and probable grounds" standard set out in s. 8 of the Charter to be lawful.

Border Searches

• Searches at an International Border

See Also

• Warrantless Seizure Under Section 489 - Section 489 also provides authority for police to seized things for which they reasonably suspect affords evidence to a criminal offence.

Manner of Search

This page was last substantively updated or reviewed January 2016. (Rev. # 79439)

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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.

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

Disruptive Searches

Once an item has been searched and determined not to be relevant, "it should be returned to where it was found.” The "deliberate and unnecessary damage to property" and "deliberate and unnecessary disorder and disarray" of property may produce a breach of s. 8 of the Charter of Rights and Freedoms.

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

[omitted (a)]

(b) as a peace officer or public officer,

[omitted (c) and (d)]

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) [protection of persons acting under authority – when protected] and (5) [protection of persons acting under authority – power in case of escape from penitentiary], a person is not justified for the purposes of subsection (1) [protection of persons acting under authority] 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.

[omitted (5)]
R.S., 1985, c. C-46, s. 25; 1994, c. 12, s. 1.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

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

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

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

Strip Searches

• See Search Incident to Arrest#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".

See Also

• Execution of Search Warrants

Warrantless Searches

• < Search and Seizure
• < Warrantless Searches

Introduction

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

Generally speaking, a lawful search can only be done when under judicial authorization where it is feasible to get one.

Burden of Proof

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

Entry into a Residence

The Police cannot enter into a private dwelling without a warrant, consent of the homeower(s), or exigent circumstances.

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

• Charter Applications

Consent Search

This page was last substantively updated or reviewed January 2019. (Rev. # 79439)

• < Search and Seizure
• < Warrantless Searches

General Principles

A search by consent is one form of warrantless search. A search conducted with valid consent is lawful.

Valid consent exists where the following is present:

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

Voluntary

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

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.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.”

Notice of Right to Refuse

The cases are divided on whether the police need to give clear instructions on the right to refuse. 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 an accused who is not in custody of the right to refuse consent. However, a failure to do so may result in a lack of informed consent. Where the accused is in custody, there is a onus to inform the accused of their right to refuse.

Waiver

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

Effect of Consent

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

Invalidating consent

A threat to get a warrant when the officer knows there is no grounds to do so can invalidate consent to search. 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.

Coercion

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

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.

Burden

The burden is upon the Crown to prove consent on a balance of probabilities.

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), [1997] 2 SCR 13, per Sopinka J requiring a "Feeney warrant" to enter a residence for arrest.

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

1. it must be given by someone who has a privacy interest in the premises
2. the consent must be an informed one

Consent to Enter Residence to Search

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

The relationship between the consenter and the suspect is not determinative.

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.

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

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

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

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

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

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

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

Authority to Consent and Third Party Consent

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

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

Mistaken Belief in Authority

For all searches, the police must have a subjective belief that they have consented 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 section 24(2) analysis.

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

Joint Residency

There is some authority that says an "authorized occupant" of a residence may give consent to a search. This will usually include the homeowner.

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."

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

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

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

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. Parents who exercise control over a child's room or property may remove any expectation of privacy.

Computers

Police may not seize a device without a warrant that is jointly owned by multiple people unless they have the consent of all the owners.

Employer Consent

An employer cannot provide consent to examine the contents of an employee's computer where they hold any reasonable expectation of privacy.

Young Persons

It is generally accepted that parents cannot waive the privacy interests of young persons.

However, simply having exclusive control of a room will not render it protected.

Mandatory Consent

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

Consent by Organizations Holding Personal Information

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

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

7...

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

• Waiver of Charter Rights

Search Incident to Detention

This page was last substantively updated or reviewed January 2017. (Rev. # 79439)

• < Search and Seizure
• < Warrantless Searches

General Principles

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

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

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.

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.

Vehicle Searches

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

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

1. that the vehicle be stopped or the occupants be detained lawfully;
2. that the officer conducting the search 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 bears a reasonable relationship to the offence suspected and the evidence sought.

Roadside Stops

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

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

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

Several provincial acts permit the 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.

Seizure Incident to Detention

• See Seizure of Property

Case Digests

• Warrantless Searches (Cases)

Search Incident to Arrest

This page was last substantively updated or reviewed October 2022. (Rev. # 79439)

• < Search and Seizure
• < Warrantless Searches

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). This exception is limited by courts to protect the individual's privacy rights.

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

The accused generally cannot claim an expectation of privacy with respect to his personal belongings inspected once they are lawfully seized incident to arrest.

There is no "blanket authority" to search a car incident to arrest.

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."

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

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.

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

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.

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.

The "primary" purposes of search incident to arrest are:

1. to ensure the safety of the police and the public;
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.

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."

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

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

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."

Assessment of Valid Searches

The assessment of a search must consider:

1. the purpose of the search;
2. whether that purpose was a valid law enforcement purpose that was connected to the arrest; and
3. whether the purpose identified for the search was objectively reasonable in the circumstances.

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. This power is derived from the common law.

The police are obliged to safeguard items they have seized.

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."

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

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". A "substantial delay" will permit the making of an inference that the search was not sufficiently connected to the arrest.

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

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

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.

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

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

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."

They are considered highly intrusive because:

• 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."

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

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.

Burden or Onus

The onus is upon the Crown to establish the sufficiency of grounds to conduct the strip search.

It Should Not be Routine

Given the level of intrusion, strip searches should not be carried out "routinely or under policy". There should be a "compelling reason" to undertake one.

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". However, no matter what the search will be "humiliating and degrading".

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

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 Takes 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.They represent an even greater intrusion upon the privacy and bodily integrity of the accused.

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."

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".

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.

Deviation from Guidelines

The established guidelines can be deviated from where there are "exigent circumstances" that do not permit less intrusive procedures.

Mere non-cooperation or resistance is not enough to make out exigent circumstances.

Taking Bodily Samples

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

Penile Swabs

There is a divide on whether a penile swab is ever available without a warrant.

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

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

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

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

Residences

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.

Section 529.3 authorizes warrantless entry into a residence.

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.

Motor Vehicles

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

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.

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

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

Vehicle Search Incident to Arrest Warrant

A search of a vehicle incident to the execution of an arrest warrant, as opposed to a search pursuant to an investigation, will usually not be permissible and would violate s. 8 of the Charter.

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.

Requesting Driver's Licence

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

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 to itemize the property of apparent value.

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.

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

Passengers of Vehicles

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

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".

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

Computers, Cell Phones and Digital Storage

See also Reasonable Expectation of Privacy#Computers and Electronic Devices

A warrantless search of a cell phone incident to arrest is permitted where:

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".

Truly Incidental

The requirement that the purpose be "truly incidental" asks for a strict interpretation of the purpose of the search. The search must be articulated as connecting the "particular arrest for the particular offence". It cannot be generalized.

Timing of Search

Searches should be done "promptly upon making an arrest".

Discovery of Evidence

The "valid reasons" relating to the discovery of evidence should "not routinely permitted simply for the purpose of discovering additional evidence". It must serve an "immediate investigative purpose". 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."

Detailed Notes

The requirement for detailed notes will vary on the type of device examined. A device such as a USB key that contains a "narrower" range of information will impose less obligation on the officer.

Examples

Storage Devices

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

Seizure Incident to Arrest

• See Seizure of Property

See Also

• Reasonable and Probable Grounds
• Manner of Search

Warrantless Search of Abandoned Property

This page was last substantively updated or reviewed January 2019. (Rev. # 79439)

• < Search and Seizure
• < Warrantless Searches

Principles

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

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." This is found as a matter of fact.

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.

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

Whether something is abandoned is a "highly factual inquiry".

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.

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.

Garbage

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

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.

Case Digests

• Warrantless Searches (Cases)

See Also

• Abandonment Defence
• Reasonable Expectation of Privacy

Plain View Search and Seizure

This page was last substantively updated or reviewed January 2020. (Rev. # 79439)

• < Search and Seizure
• < Warrantless Searches

General Principles

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

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

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

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.

Plain View Doctrine

There are generally three requirements for the plain view doctrine:

1. the police officer must lawfully make an initial intrusion or otherwise properly be "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:

It has been suggested that there is an additional step between the second and third step, requireing that "the evidence was in plain view in the sense that it was detected through the unaided use of the officer’s senses".

The first step requires that the officer "must be lawfully in the place and acting lawfully in the exercise of police powers when the officer discovers the evidence".

The requirement of "inadvertence" means that "it is not discovered by unauthorized search, but rather, because it is in the open when the police are lawfully in the place where it is visible, and lawfully exercising police duties". It does not apply where "officers discover the item through an unauthorized search."

The requirement of "immediately apparent" means that the office has "probable cause to associate the discovered property with criminal activity."

Plain View vs s. 489(2)

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.

Exceptions

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.

Exploratory vs Seizure Power

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

Examples

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

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

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.

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

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.

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

Officer Trespassing and Perimeter Searches

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

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

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

Technological Detection

FLIR

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

Sniffer Dogs

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

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

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.

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 different rooms of the residence, that may about to a search.

Warrantless Search in Exigent Circumstances

This page was last substantively updated or reviewed January 2018. (Rev. # 79439)

• < Search and Seizure
• < Warrantless Searches

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.

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

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

Where warrant not necessary

487.11 A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) [territorial search warrants – requirements] 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 (CanLII), (DOJ)

---

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

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."

Established 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.

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. 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.

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

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

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

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

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.

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.

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."

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.

Entry of Dwellings and Other Buildings

• Warrantless Entry into Dwellings in Exigent Circumstances

Drug Offences

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.
[omitted (2), (3) and (4)]

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.

Section 11(7) of the CDSA requires:

1. the necessary conditions to permit the granting of a warrant
2. exigent circumstances that make getting the warrant impractical

Wiretap

See Emergency Wiretaps

See Also

• Ancillary Powers Doctrine

Warrantless Entry into Dwellings in Exigent Circumstances

This page was last substantively updated or reviewed May 2020. (Rev. # 79439)

• < Search and Seizure
• < Warrantless Searches

General Principles

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

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

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 [entry into residence to arrest] 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 [entry into residence to arrest] exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

Exigent circumstances

(2) For the purposes of subsection (1) [authority to enter dwelling without warrant], 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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

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."

Factors

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

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

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. This is a limited and extraordinary exception to the rule against privacy in the home.

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."

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. The search however should be "cursory and noninvasive".

Hot Pursuit

A warrantless entry is further permitted when it falls into the common law doctrine of "hot pursuit".

Exterior of Property

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

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".

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".

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

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.

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

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

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

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.

Safety

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

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".

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

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

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

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

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."

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

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

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

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

Entry into Place to Execute an Arrest Warrant

This page was last substantively updated or reviewed January 2017. (Rev. # 79439)

• < Search and Seizure

General Principles

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.

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

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.

A warrantless entry into a home is presumed unlawful.

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. 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.

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.

"Knock and Sniff" Not Permitted

The use of knowledge of suspicious activity cannot be used as a pretext to go beyond the implied licence to knock.

Requirements

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

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) [execution of warrant to enter residence to arrest], 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) [including authorization to enter in warrant of arrest] 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 (CanLII), (DOJ)

---

Warrant to enter dwelling-house

529.1 A judge or justice may issue a warrant in Form 7.1 [forms] 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 power] 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 (CanLII), (DOJ)

---

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 [entry into residence to arrest] or 529.1 [entry into residence to 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 (CanLII), (DOJ)

---

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 [entry into residence to arrest] 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 [entry into residence to arrest] exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

Exigent circumstances

(2) For the purposes of subsection (1) [authority to enter dwelling without warrant], 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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

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

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

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

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 [entry into residence to arrest] or 529.1 [entry into residence to 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 [authority to enter dwelling without warrant] 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 of evidence relating to the commission of an indictable offence.

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

– CCC (CanLII), (DOJ)

---

Telewarrant

Means of telecommunication

529.5 An application for a warrant under section 529.1 [entry into residence to arrest] or an authorization under section 529 [entry into residence to arrest] or 529.4 [executing a warrant to enter a residence of arrest] may be submitted, and the warrant or authorization may be issued, by a means of telecommunication, and section 487.1 [telewarrants] applies for those purposes with any necessary modifications.

1997, c. 39, s. 2; 2022, c. 17, s. 34.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

See Also

• Warrant Arrests
• Form 7.1

Warrant Searches

This page was last substantively updated or reviewed January 2021. (Rev. # 79439)

• < Search and Seizure
• < 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.

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

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.

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.

Presumptions

A warrant is presumed valid. The onus is upon the party who challenges the sufficiency of the ITO supporting the warrant.

Types of Warrants

The Criminal Code provides for several types of search warrants:

Search Warrant (s. 487) General Warrant ( s. 487.01) Assistance Orders (s. 487.02) Firearms warrant ( s.117.04) Obscene materials (s. 164) Consent wiretap (s. 184.2) Wiretap (s. 186)

Impaired Driving Blood Samples (s.256) Proceeds of Crime (s. 462.32) DNA Samples ( 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

Purpose of a Warrant

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

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."

It is also designed to "gather information to assist in the investigation of [criminal] activity".

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

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

General Requirements

Under the Charter, an authorization that permit intrusion upon a fully recognized zone of privacy is one of "credibility-based probability". Sometimes referred to as "reasonable grounds" or "reasonable and probable grounds".

Components of an authorization requires that:

• the item of interest exist
• the item will be found in the location that is the subject of the search
• the offence under investigation has been committed (in certain circumstances the offence may be prospective)
• the item would be of some evidential value toward proof of the offence or discovery of other evidence of the offence

Authorizing Justice

Before authorizing a warrant, the justice must "decide whether there are reasonable grounds to believe the statutory preconditions for issuance of the warrant are met."

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.

An application for a judicial authorization is a "judicial act" that is usually done ex parte and in camera.

As it is an ex parte motion the affiant is expected to "make full, fair and frank disclosure of all material facts."

A justice of the peace is exercising a judicial function when issuing warrants. This requires that they maintain their independence. They may not take part in the drafting process by reviewing an incomplete application and give advice on them.

An issuing justice cannot be subpoenaed to give evidence concerning their judicial decision-making when issuing a warrant. However, they are compellable on issue of "administrative functions."

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.

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."

Forms

a judicial authorization under section 47 requires a Form 5.

The use of an outdated Form 5 can have the effect of including language that broadens the search beyond what is authorized under section 487(1)(b). This is sometimes referred to as a "Branton Error".

The consequence of a Branton error include a complete invalidation of the warrant. Alternatively, the warrant may be rectified through the principle of severance.

Errors Before Execution

If an error is found to the authorization after it is granted. It is not possible to amend a warrant once granted.

Questions from JP Seeking More Information

The assessing justice should not be reluctant to ask the affiant questions when considering granting an authorization. The answers however should not be provided orally. They should be put in the ITO as part of a new application. The JP is not permitted to receive "information" that has not been recorded or under oath.

Rejecting Application for Judicial Authorizations

Just because a warrant is rejected does not mean that the judge or justice is declaring the police are prohibited from ever being able to access the zone of privacy. The police have the right to reapply with new evidence.

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. The justice may advise that more information is necessary for the authorization to be granted. Any new information must however be provided within a new ITO and not orally.

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.

Providing Advice

There is nothing wrong with the justice advising the officer on what additional information would be required before the warrant can be granted.

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.

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.

Re-Applying

There is no rule against police filing the same rejected application before another justice, so long as they provide the following information:

• the existence of the prior application
• the reasons for rejection
• what has transpired since the prior application
• any clarifying information

It would likely be advisable to indicate some reason for going to a different justice so as not to appear to be "judge shopping".

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:

• Search Incident to Investigative Detention
• Search Incident to Arrest
• Abandonment
• Exigent Circumstances
• Plain View
• Consent

Topics

• Contents of the ITO
  • Reasonable and Probable Grounds
  • Judicial Authorization Standard of Review
• Search Warrant Evidence
• Standard of Review
• Execution of Warrants
• Special Search Issues
• Sealing and Unsealing Warrants

Types of Warrants

• Section 487 Search Warrants
• Assistance Orders
• Production Orders
• Production Orders for Financial Data
• Production Orders for Tracking Data

Information to Obtain a Search Warrant

This page was last substantively updated or reviewed October 2022. (Rev. # 79439)

• < Search and Seizure
• < Warrant Searches

General Principles

The affiant police officer's role is to provide a "factual foundation" to justify the issuing of a warrant. 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." A failure in these duties does not necessarily invalidate the warrant.

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.

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.

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

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
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."
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

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

Basic Elements

The four key elements of an ITO should include:

1. the place to be searched;
2. the items to be searched for;
3. what offences these items are evidence of; and
4. the time period in which the search is to occur.

A list of requirements of an ITO should include facts establishing grounds of belief for:

• 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”.

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

Facial Validity

The date, place and time of the authorization must be present on the warrant to be valid.

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

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. Officer’s generally speaking are not held to the same drafting quality as counsel.

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

The use of boilerplate or conclusory language may render the ITO insufficient.

Inquiry by Justice

A justice has no obligation to make inquiry of the affiant into the grounds of his belief.

Organization and Length

An issuing judge or justice is entitled to reject an ITO on the basis of it being too lengthy and disorganized. 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

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."

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.

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

Full, Frank and Fair Disclosure

Standard for ITO Disclosure

The affiant must make "full, frank and fair" disclosure of all information known to the officer relevant to the matter before the authorizing justice. This obligation arises due to the ex parte nature of the application. There is a hightened risk of the court's powers being misused.

This principle applies to all warrants, including wiretaps.

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

Consequence of Failure to be FF&F

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.

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

Breadth of FF&F Standard

In any ex parte application process, the applicant must disclose "material facts" that may affect the outcome of the application. The ITO does not need to state every step a police officer takes in obtaining information.

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

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

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."

Affiant Discretion

The affiant must exercise some discretion and judgement to decide what is most important to include in the ITO and what to leave out.

Good Faith

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

Inappropriate Content

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

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

Inferences

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

Experience of Officer

The officer's experience is relevant to the investigative narrative. Training and experience permits an officer to draw inferences and make deductions not otherwise available to a lay person.

Rule Against Narrative (Source Citation Rule)

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.

(A) Description of the Location (or Place) to be Searched

It is a fundamental requirement that the warrant must precisely identify the location to be searched.

A description that fails to describe the location will invalidate the warrant.

Precision is necessary in the identification of the place to be searched. Police need to know the proper scope of their authorization. Vagueness can lead to searches of the wrong location and can lead to abuse. Imprecision leaves those subject to the warrant in doubt about whether there is a presumptively valid warrant to search the premises.

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

What constitutes sufficient description will vary on the location and circumstances of the offence.

Motor Vehicles

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

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.

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.

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

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

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

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

A warrant must distinguish between units in a multi-unit buildings as each unit has equal privacy to a single residence.

Wrong Address

A warrant that outlines a wrong address results in the search of the correct address to be deemed warrantless.

A wrong address on the warrant cannot be amended.

(B) 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."

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.

Generally, an approving justice should be satisfied that:

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

It has been recommended the following principles be considered:

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

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."

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

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

(C) 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. It is not necessary that the description set out the specific charge or be of quality for pleadings at trial.

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

The ITO and warrant must be equally sufficient. The warrant must have enough information that the recipient of the warrant must be able to identify "the various elements of [the] offence".

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.

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

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

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

(D) Time of Search

The warrant should describe the time period in which the execution of the search is to be authorized. That period can be implied as being "within a reasonable time" from being authorized. Some authority suggests that 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.

A warrant omitting the time of search can still be facially valid.

There should be a specified or inferred time period in which the search is to be conducted.

Time of Day

Normally authorizations under s. 487, 487.1, 462.32 are to be executed during day time hours, which range from 6am to 9pm.

A night-time warrant requires additional grounds if done pursuant to s. 487, while it is not needed if authorized under s. 11 CDSA.

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.

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.

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

Rooming House

All rooms within a rooming house has the same level of privacy as a single residence. 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."

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.

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.

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."

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

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.

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.

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.

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.

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.

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".

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

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.

Standard of Review of Decision

The discretionary decision to deny the right to cross-examine an affiant can be reviewed if there is an error in principle, material apprehension of evidence, or unreasonable finding.

Credibility and Reliability of Source

A source who gives fraudulent or deliberately misleading information does not automatically invalidate the warrant. 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.

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.

Retaining Early Drafts

There is no constitutional obligation to retain early drafts of an ITO.

See Also

• Judicial Authorization Standard of Review
• Search Warrant Evidence
• ITO Drafting Checklist

Confidential Informers

This page was last substantively updated or reviewed January 2017. (Rev. # 79439)

• < Procedure and Practice

• < Search and Seizure
• < Warrant Searches

General Principles

Police will often rely upon confidential informers to form their grounds to effect 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.

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:

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:

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?

This test is to apply when a warrant is "based largely on information coming from a confidential informant".

All these factors are to be balanced together in the "totality of the circumstances" to determine if the evidence meets "the standard of reasonableness" (or referred to as on a standard of "Reasonable probability").

None of the factors are not "water-tight" inquiries.

Weaknesses present in one factor can be made-up for by strengths on other factors.

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

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

Hearsay from the informant can be sufficient.

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

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.

Detail

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

Corroboration

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

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

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:

• 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.

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"

Corroboration

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

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

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

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

Often evidence from surveillance or other investigative tools can corroborate the informer.

Reliability and Credibility

• Past reliability:
  • 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 a 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 they 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. However, offences such as perjury will likely have an impact on their credibility.

Motivation

There are a variety of motives to be an informant, including.

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.

Assessing ITOs

Crime Stopper Tips

An ITO can rely on an anonymous crime stopper tip. However, alone they are not normally enough to authorize a warrant as it is not usually possible to assess reliability.

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."

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

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."

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

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

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

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

See Also

• Cases on Informers in Warrantless Searches
• Informer Privilege
• Information to Obtain a Search Warrant

Social Sciences

• essay on risks of jailhouse informants

Search Warrant Evidence

This page was last substantively updated or reviewed January 2016. (Rev. # 79439)

• < Search and Seizure
• < Warrant Searches

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.

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. The same goes for entering into a commercial building without permission. However, an officer may not rely on information gained by peering into windows of a building that they cannot enter.

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". There is a diminished, if any, privacy in the hallway of an apartment building.

See also Reasonable Expectation of Privacy

Statement by Accused

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

The statement cannot be involuntary.

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

Criminal Records

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

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

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

Hearsay

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

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

A justice should independently assess the reliability of the hearsay by considering why the affiant found the hearsay reliable.

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

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

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

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

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

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

Debot factors are to be applied when considering hearsay.

Expert Evidence

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

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

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.

Credibility

See Confidential Informers

Reasonable and Probable Grounds

This page was last substantively updated or reviewed January 2021. (Rev. # 79439)

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• < Warrant Searches

• < Search and Seizure
• < Warrantless Searches

General Principles

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".

Credibility-based Standard

Reasonable and probable grounds is the “the point where credibly-based probability replaces suspicion". It is the reasonable belief that "an event not unlikely to occur for reasons that rise above mere suspicion". "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".

Credibility-based probability involves “a practical, non-technical, and common-sense assessment of the totality of the circumstances”.

Totality of Circumstances

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

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

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

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

Source of Assertion

The swearing officer's 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".

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.

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. It is also greater than "[m]ere suspicion, conjecture, hypothesis or ‘fishing expeditions’".

Contrast with BARD and Prima Facie Standard

It does not equate with "proof beyond a reasonable doubt" or to a "prima facie case". It is not "proof absolute".

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

Contrast to Reasonable Suspicion

It is higher than "reasonable suspicion", 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"

Identical Standards

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

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" These requirements set out the "minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure".

Reliability of Information

The officer weighing evidence to be relied upon when justifying a search or arrest must be satisfied that:

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.

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.

A Context-Specific Standard

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

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".

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

Fair Context

The officer must take into account both inculpatory as well as exculpatory evidence. The only evidence that is unreliable can be ignored. The officer must make inquiry as the circumstances reasonably permit.

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”.

Subjective Factors

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

Experience, Training and Knowledge of Officer

The officer may use his training and experience in determining objective reasonableness. 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 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.

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

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".

Operating on Agency

The searching or arresting officer may rely upon the assumption that the officer directing them has the requisite grounds. </ref>

Mistaken Belief vs Reality

In assessing the reasonableness, the judge must "measure the facts as the police officer honestly understood them to be".

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.

Objective Factors

The subjective belief must be reasonable.

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 in fact true. It is only whether it was reasonable for the officer to believe that the officer's believed facts, circumstances and inferences were reasonable.

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

Inferences

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

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

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.

The standard remains the same for offences within the Code.

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

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

Judicial Notice

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

Compared to Suspicion

Reasonable suspicion requires a "reasonable possibility" of certainty while reasonable and probable grounds requires a "reasonable probability" of certainty.

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

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.

In Arrest

• Warrantless Arrests#Reasonable and Probable Grounds

In Search Warrants

An affiant must have formed reasonable grounds before applying for a search warrant such as that found under s. 487.

The "reasonable grounds" standard has two components the "subjective" and "objective". In the context of a warrant the affiant swearing the ITO "must have a subjective belief that ... the search requested will yield evidence respecting the commission of an offence" and that an "objective assessment of the grounds justifies issuance of the warrant."

While the objective component is the same as that addressed in grounds of arrest, the application in the contxt of a warrant is more "exacting".

Special Rules

Child Pornography

It is not necessary that an eye-witness claiming to have seen child pornography describe the contents of the image in order for the officer to form reasonable grounds.

Confidential Informers

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

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.

Drunk Driving

• see Reasonable Grounds Under Section 254(3)

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.

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.

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”. It follows that police cannot simply arrest everyone coming out of a residence believes to be a grow operation.

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.

See Also

• Search Warrant Evidence

Search Warrant Standard of Review

This page was last substantively updated or reviewed April 2021. (Rev. # 79439)

• < Search and Seizure
• < Warrant Searches

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 trial judge is entitled to determine whether an authorization "could have been granted based on the record that was before the authorizing justice, as amplified on review".

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

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."

The standard of review for an authorization is a "limited" one. If the authorizing justice "could have" issued the warrant, then the judge should not interfere. Stated differently, the reviewing judge must be satisfied that there is "no justifiable basis" upon which the justice could have granted the warrant.

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

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." This is however a high threshold.

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

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.

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.

Assessing Reliability

There is no need for the affiant to expressly refer to the testimonial reliability of the informant. The reviewing judge can assess that from the factual circumstances revealed in the affidavit. The court is to take a "global view" of the information contained in the affidavit.

Assessing ITO

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"

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

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."

Reasonable Grounds

See Reasonable and Probable Grounds

Standing

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.

A co-conspirator does not have standing to challenge the wiretap that is alleged to have breached another co-conspirator's rights.

Presumptions and Burdens

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

Degree of Deference

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

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

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

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

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."

Quality of Drafting

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

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."

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

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

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

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

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."

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

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

Errors, Omissions and Mischaracterizations in the Warrant Order

Time Limitation on the Search

See Information to Obtain a Judicial Authorization (Element C)

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.

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.

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."

Affiant Standard of Care

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

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.

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.

"Materiality" must be evaluated on the "totality of the circumstances."

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.

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.

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

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

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."

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."

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

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."

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

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

Deliberate Misleading

Deliberately misleading information should be excised from the ITO. Where it taints the ITO as a whole it may invalidate the warrant.

A "deliberately misleading" ITO will invalidate the warrant.

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.

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." Thus, the failure of taking further investigative steps before seeking a warrant will not invalidate the warrant.

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."

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

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.

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.

Procedure for Review of Warrant

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. 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.

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 hearing, sometimes called a "Vukelich hearing." The determination of whether to permit the accused to challenge the warrant can be made on the basis of submissions of counsel. 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.

A hearing to challenge a warrant is often referred to as a "Garofoli hearing."

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.

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.

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." 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. The reviewing judge must determine whether "authorizing justice could have issued the warrant" if the judge had been aware of the amplification evidence.

A sub-facial review turns on the question of what the affiant knew or ought to have known at the time of the swearing of the affidavit.

Reviewing Redacted or Sealed ITOs

In many instances, the authorizing justice will grant a "sealing" order under s. 487.3. The Crown will typically provide defence with an redacted copy of the ITO to defence counsel.

Where a challenged ITO has been redacted to an extent that the redacted information is insufficient to support the issuance of the warrant, the Crown can invoke "step six of Garofoli" which permits the defence to rely on a vetted summary of redacted information. A summary of the vetted portion of the ITO is reviewed by the judge and then provided to defence counsel. The summary must provide sufficient detail as to permit full answer and defence. If the summary is sufficient, the judge may review and rely on the redacted portion of the ITO.

The accused may use the redacted ITO, the summary of the redacted portions, and any other admissible evidence, to convince the judge that the ITO "could not justify the issuance of the warrant".

This process balances the conflicting interests of enforcing law, protecting privilege, and the accused's right to full answer and defence.

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.

Threshold

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."

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." 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, including the discrediting of one or more of the preconditions to issue the warrant. Generally, this would only include issues of credibility and reliability of the affiant and their sources. The focus on the examination should be on the reasonableness and honesty of the affiant's belief, not the ultimate accuracy of the information.

In certain circumstances the motion can be granted on a wider basis if the accused is able to show a "reasonable basis to believe" that the affiant deliberly mislead the authorizing judge such that it would bring the ITO's credibility into issue.

The is only a "narrow window" for cross-examination of an affiant.

Factors

Cross-examination should not be permitted where "there is no reasonable likelihood that it will impact on the question of admissibility of the evidence."

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." The judge may further limit the area of cross-examination to specific issues of controversy.

It should not be used to extend the hearing unnecessarily and should not permit discovery of confidential sources.

Scope

It is not permissible to seek cross-examination on issues relevant to s. 24(2) remedy where it does not also go to the validity of the warrant.

Denial of Request

Where the court denies leave to cross-examine the affiant, the defence may still call other amplification evidence to attack reliability.

Wiretaps

The test applied to affiants of