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 and objective component.[4]

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

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

  1. Hunter v Southam Inc., [1984] 2 SCR 145, 1984 CanLII 33 ("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. Feeney, supra 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 Investigative Detention
  3. Search Incident to Arrest
  4. Search of Abandoned Property
  5. Search in Plain View
  6. Exigent Circumstances

See Also