Warrantless Searches

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Introduction

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

An individual alleging a breach of his or her Charter rights bears the burden of proving that violation on a balance of probabilities. That being said, if the individual can demonstrate that a police search was conducted without a warrant, that search will be presumed to be unreasonable unless shown to be justified.[2] The Crown then must prove the reasonableness of the search on a balance of probabilities. [3] Reasonableness of a search has both a subjective an objective and subjective component.[4]

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

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

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

Statute

Provincially constituted police forces are created by an act of provincial legislature. Within these acts there will typically be some outline of basic duties as a peace officer.[1]

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

  1. see:
    NLD: Royal Newfoundland Constabulary Act, 1992, SNL 1992, c R-17
    NS: Police Act, SNS 2004, c 31 at s. 30
    ON: Police Services Act, RSO 1990, c P.15 at s. 42
    MB: The Police Services Act, CCSM c P94.5

Common Law

Categories of Searches

There are several types of warrantless searches:

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

See Also