Full Text:Volume 3

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Volume III: Search and Seizure

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.[1]

  1. R v Jones, 2017 SCC 50 (CanLII), per Côté J, at para 48
    R v Tessling, 2004 SCC 67 (CanLII), per Binnie J, at paras 12 to 16

Fundamental Principles

Rights Against Search and Seizure

General Principles

See also: Reasonable Expectation of Privacy

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

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

CCRF

Under this section police are prohibited from "unreasonable" searches. The inquiry of the lawfulness of a search is based on whether the search was "reasonable" in the circumstances. The circumstances include the nature of the duty performed as well as the purpose of the search.[1]

When Protections Engaged

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

Analysis

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

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

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

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

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

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

Interpretation of Rights

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

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.“[11]

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".[12]

  1. R v Nicolosi, 1998 CanLII 2006 (ON C.A.), per Doherty JA (3:0)
    R v Campbell, 2011 SCC 32 (CanLII){AtL|flz50|14}} (" In order to comply with s. 8 of the Charter, prior to conducting a search the police must provide 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" [quotation marks removed])
  2. R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128, per Cory J and La Forest J (9:0), at para 45
  3. Edwards, ibid.
    Hunter et al. v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145, per Dickson J
  4. Edwards, supra, at para 33
  5. R v Patrick, [2009] 1 SCR 579, 2009 SCC 17 (CanLII), per Binnie J (7:0), at para 14
  6. R v Law, 2002 SCC 10 (CanLII), [2002] 1 SCR 227, per Bastarache J (9:0), at para 15
  7. R v McCormack, 2000 BCCA 57 (CanLII), [2000] BCJ No. 143 (BCCA), per Saunders JA (3:0), at para 5
  8. R v Kokesch, 1990 CanLII 55 (SCC), (1990), 61 CCC (3d) 207 (SCC), per Sopinka J (4:3) at 227
    R v Genest, 1989 CanLII 109 (SCC), (1988), 45 CCC (3d) 385 (SCC), per Dickson CJ (7:0) at 408
  9. R v Hart, 2012 NLCA 61 (CanLII), per Green CJ (2:1)
  10. R v Colarusso, [1994] 1 SCR 20, 1994 CanLII 134 (SCC), per La Forest J (9:0)
  11. Hunter v Southam
  12. R v Pugliese, 1992 CanLII 2781 (ON CA), (1992), 71 CCC (3d) 295 (Ont. C.A.), per Finlayson JA (3:0)

Meaning and Purpose of Rights Against Search and Seizure

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128, per Cory J (9:0)
    R v Dyment, [1988] 2 SCR 417, 1988 CanLII 10 (SCC), per Lamer J and La Forest J (5:1), at para 17 ("The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state")
  2. R v Tessling, 2004 SCC 67 (CanLII), per Binnie J, at paras 12 to 16
  3. R v Plant, [1993] 3 SCR 281, 1993 CanLII 70 (SCC), per Sopinka J (7:0), at p. 293 (SCR)
  4. Dyment, ibid., at para 17
  5. Edwards, supra, at para 61
  6. Tessling, supra, at para 25
    Patrick, supra, at para 38 (privacy "can vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusions occurs, and the purposes of the intrusion")
  7. R v Colarusso, 1994 CanLII 134 (SCC), [1994] 1 SCR 20, per La Forest J (9:0), at para 70
  8. R v Feeney, 1997 CanLII 342 (SCC), [1997] 2 SCR 13, per Sopinka J (5:4), at para 47
  9. R v Hape, 2007 SCC 26 (CanLII), (2007), 220 CCC (3d) 161 (SCC), per LeBel J (9:0) , at para 161
  10. Tessling, supra, at para 42
  11. R v Ward, 2012 ONCA 660 (CanLII), per Doherty JA (3:0), at para 82
  12. Tessling, supra, at para 17
  13. Hunter et al. v Southam Inc, 1984 CanLII 33 (SCC), [1984] 2 SCR 145, per Dickson J, at p. 160
  14. Hunter v Southam, supra, at pp. 114, 115
  15. See Hunter v Southam, supra
    See Hutchison, The Law of Search and Seizure at 1-1
  16. Dyment, supra, per La Forest J, at pp. 427-28
  17. Tessling, supra, at para 17
  18. Dyment, supra, at p. 431
    R v Craig, 2016 BCCA 154 (CanLII), per Bennett JA, at para 155 (Section 8 of the Charter protects against unreasonable search or seizure. These words are used disjunctively...Thus, it is possible for a search to be reasonable, but a seizure to be unreasonable.")

Meaning of a "Search"

See also: Warrantless Searches

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

Any "inspection is a search" where a "person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access".[2]

The "Place" of Search

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

Residences

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

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

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

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

Vehicles

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

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

Person

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

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

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

Other Observations

Detection of an odour of marijuana from a bag, by an officer using his own senses, while performing other duties does not constitute a search.[16] This is distinct from detection with the use of technology, such as a sniffer dog or a FLIR device.[17]

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

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

Undercover Agent

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

  1. Hunter v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145, per Dickson J
    R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128, per Cory J and La Forest J (9:0)
    R v Law, 2002 SCC 10 (CanLII), [2002] 1 SCR 227, per Bastarache J (9:0), at para 15 ("...police conduct interfering with a reasonable expectation of privacy is said to constitute a "search" within the meaning of the provision")
    R v Wise, 1992 CanLII 125 (SCC), [1992] 1 SCR 527, per Cory J (4:3) at 533 (only “[i]f the police activity invades a reasonable expectation of privacy, [that] the activity is a search”)
    R v Evans, 1996 CanLII 248 (SCC), [1996] 1 SCR 8, per Sopinka J and Major J (7:0), at para 11
  2. R v Cole, 2012 SCC 53 (CanLII), per Fish J (6:1), at para 34
  3. e.g. R v Patrick, 2009 SCC 17 (CanLII), per Binnie J (7:0), at paras 41 to 45
  4. Patrick, supra, at para 42
  5. See R v MacDonald, 2012 NSCA 50 (CanLII), per MacDonald CJ, at para 19, appealed on other issues to 2014 SCC 3 (CanLII), per LeBel J
    R v Hope, 2007 NSCA 103 (CanLII), per Fichaud JA (3:0), at para 27
    Evans, supra, at para 8
  6. R v Boughner, 2002 CanLII 44975 (ON CA), per curiam (3:0)
  7. R v Kokesch, 1990 CanLII 55 (SCC), (1990), 61 CCC (3d) 207 (SCC), per Sopinka J (4:3)
  8. R v MacDonald, 2014 SCC 3 (CanLII), per LeBel J (7:0)
  9. R v Roy, 2010 BCCA 448 (CanLII), per Lowry JA (3:0)
  10. See R v Mellenthin, 1992 CanLII 50 (SCC), (1992), 76 CCC (3d) 481 (SCC), per Cory J (5:0) at 486-87
  11. R v Diamond, 2015 NLCA 60 (CanLII), per Harrington JA
  12. see United States v Luis Edgar Montes-Ramos [1]
  13. R v CD, 2010 CanLII 22064 (ON SC), per Nordheimer J
  14. R v Hamadeh, 2011 ONSC 1241 (CanLII), per Clark J, at paras 132 to 145
  15. R v Elzein, 1993 CanLII 3860 (QC CA), (1993), 82 CCC (3d) 455 (QCCA), per Chevalier JA
    cf. R v Dilling, 1993 CanLII 1943 (BC CA), (1993), 84 CCC (3d) 325 (BCCA), per Goldie JA (3:0)
  16. R v Rajaratnam, 2006 ABCA 333 (CanLII), 67 Alta. L.R. (4th) 22, per curiam (3:0)
  17. e.g. R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432, per Binnie J (7:1)
  18. R v Wong, 1990 CanLII 56 (SCC), [1990] 3 SCR 36, per La Forest J (6:1), at pp. 44 and 61
  19. United States v Crist, (2008) No. 07-1634 <http://caselaw.findlaw.com/us-7th-circuit/1190425.html>
  20. R v Fitt (1995), 1995 CanLII 4342 (NS CA), 96 CCC (3d) 341 (N.S.C.A.), per Hallett JA (3:0), aff’d 1996 CanLII 251 (SCC), [1996] 1 SCR 70, per Lamer CJ (9:0)
    R v Contant, 2008 QCCA 2514 (CanLII), 63 C.R. (6th) 133, per Dufresne JA (3:0), leave to appeal ref’d [2009] 1 SCR vii
    R v Gallaugher, 1999 CanLII 2242 (ON CA); [1999] OJ No 174, per curiam (3:0)
    R v Felger, 2014 BCCA 34 (CanLII), per Garson JA (3:0)

Meaning of "Seizure"

See also: Warrantless Seizure Under Section 489

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

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

Any "taking is a seizure" where "a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access".[7]

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

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

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

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

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

Consent Seizure

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

  1. there was a consent, express or implied;
  2. the giver of the consent had the authority to give the consent in question;
  3. the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
  4. the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
  5. the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,
  6. the giver of the consent was aware of the potential consequences of giving the consent.
  1. R v Dyment, 1988 CanLII 10, [1988] 2 SCR 417, per Lamer J and La Forest J (5:1), at para 26
    R v Law, 2002 SCC 10 (CanLII), [2002] 1 SCR 227, per Bastarache J (9:0), at para 15
    R v Buhay, 2003 SCC 30 (CanLII), (2003), 174 CCC (3d) 97 (SCC), per Arbour J (9:0) at 113
  2. R v Wills, 1992 CanLII 2780 (ON CA), per Doherty JA (3:0), at pp. 347-348
    Illinois v Rodrigues, 110 S. Ct 2793 (1999)
  3. R v Weir, 2001 ABCA 181 (CanLII), per curiam (3:0) - officer asks ISP employee to forward messages to him
  4. See Hutchison, The Law of Search and Seizure at 2(c)
  5. Hutchison at 2(c)
  6. R v Parton, 1983 CanLII 1181 (AB QB), per Hetherington J
    cf. US law allows seizure of a person (Terry v Ohio, 392 US 1 (1968))
  7. R v Cole, 2012 SCC 53 (CanLII), per Fish J, at para 34
  8. R v DLW, 2012 BCSC 1700 (CanLII), per Romilly J, at para 63
  9. R v Dyment, 1988 CanLII 10 (SCC), per Lamer J and La Forest J (5:1)
  10. Becker v Alberta, 1983 ABCA 161 (CanLII), per Lieberman JA (3:0)
  11. R v Abbey, 2006 CanLII 39320 (ON SC), [2006] OJ No 4689 (S.C.J.), per Archibald J; reversed on other grounds, 2009 ONCA 624 (CanLII), 97 O.R. (3d) 330 (C.A.), per Doherty JA (3:0), [2010] SCCA No 125: police took a photo of the accused's t-shirt after removing it from his body
  12. R v McKinley Transport Ltd, [1990] 1 SCR 627, 1990 CanLII 137 (SCC), per Wilson J
  13. R v Wills, 1992 CanLII 2780 (ON CA), per Doherty JA, at p. 353
    adopted in R v Borden, 1994 CanLII 63 (SCC), [1994] 3 SCR 145, per Iacobucci J, at p. 162

Standing

See also: Charter Applications and Voir Dire

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

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

Denial of Ownership or Identity

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

  1. R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128, per Cory J and La Forest J (9:0), at para 34
    R v Rahey, [1987] 1 SCR 588, 1987 CanLII 52 (SCC), per Lamer J, at p. 619
    R v Simpson, 2015 SCC 40 (CanLII), per Moldaver J
  2. R v Pugliese, [1992] OJ 450 (ONCA), 1992 CanLII 2781 (ON CA), per Findlayson JA
  3. R v Nesbeth, 2008 ONCA 579 (CanLII), per Rosenberg JA leave denied
  4. R v LB, 2007 ONCA 596 (CanLII), per Moldaver JA, at para 71 ("[h]aving disclaimed any privacy interest in the [thing], the respondent effectively precluded himself from relying on s. 8 of the Charter")
    cf. R v McGean, 2016 ONSC 3541 (CanLII), per Henderson J, at paras 34 to 43 - suggests standing even despite denial
  5. McGean, ibid., at paras 34 to 43

Validity of a Search

A lawful search must be (a) authorized by law; (b) the law itself must be reasonable; and (c) the manner in which the search was carried out must be reasonable.[1]

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

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

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

Purpose of Search

The purpose of the search is a relevant to the analysis of the search. The most frequent form of search is a search for evidence of a commission of an offence, criminal or otherwise. Secondarily, there will be searches for the purpose of officer safety. Each type of search will have different scope of powers of search.

Authorized by Law

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

Valid Law

See Constitutional Challenges to Legislation

Party Performing the Search

Section 8 of the Charter governs searches by government and its agents. The scope and degree of privacy is always with respect to a particular party.

Agents of the State

See also: Charter Applications#State Agents

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

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

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

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

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

Employees of government agencies, such as social workers, who discover or investigate possible offences are agents of the state.[8] Similarly, a private citizen performing a citizen's arrest and searching a person in anticipation of the arrival of the police is an agent of the state.[9]

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

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

Landlords

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

Schools

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

Hospital Staff

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

Security Personnel

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

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

Manner of Search

See also: Manner of Search and Execution of Search Warrants

See Also

Reasonable Expectation of Privacy

General Principles

See also: Rights Against Search and Seizure

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.[1] 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"[2] It is concerned "with the degree of privacy needed to maintain a free and open society, not necessarily the degree of privacy expected by the individual or respected by the state in a given situation…"[3]

The 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."[4]

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."[5]

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”.[6]

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".[7]

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".[8]

Privacy is held with respect to different parties. A person will hold a different expectation of privacy from an employer than from the police.[9]

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."[10]

Section 8 protects persons not places.[11] The Charter does not recognize regions of immunity.[12] 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". [13]

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.[14]

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

Zones of Protection

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

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

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

Personal Privacy

Personal privacy "protects bodily integrity, and in particular not to have our bodies touched or explored to disclose objects or matters we wish to conceal."[1] It is for that reason that it is considered the strongest of the forms of privacy.[2]

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

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

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

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

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

Territorial Privacy

Privacy over personal territory traces back to the English common law with the maxim that "the house of everyone is to him as his castle and fortress".[1] This has since been adopted into the common law of Canada and the Canadian Charter of Rights and Freedoms.[2]

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

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

There may exist territorial privacy in semi-public places, such as school hallways, depending on the circumstances.[6]

  1. Semayne's Case, supra, at para 1
  2. Adopted in common law in Eccles v Bourque et al., 1974 CanLII 191 (SCC), [1975] 2 SCR 739, per Dickson J
    Adopted as applicable to Charter in Colet v The Queen, 1981 CanLII 11 (SCC), [1981] 1 SCR 2, per Ritchie J
  3. R v Tessling, 2004 SCC 67 (CanLII), per Binnie J, at para 22
  4. Tessling, ibid., at para 22
  5. Tessling, ibid., at para 22
  6. R v Jarvis, 2019 SCC 10 (CanLII) , [2019] 1 SCR 488, per Wagner CJ

Informational Privacy

The right protects the "biographical core of personal information" that includes "information which tends to reveal intimate details of the lifestyle and personal choices of the individual."[1] It permits "individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others".[2]

Privacy as Anonymity

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

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

"Totality of Circumstances" Test

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

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

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

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

Presumptive Expectations

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

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

Subjective and Objective Components

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

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

Subjective Component

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

Objective Component

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

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

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

Factors to consider reasonableness are listed below.[10]

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

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

  6. e.g. see R v Gomboc, [2010] 3 SCR 211, 2010 SCC 55 (CanLII), per Deschamps J, at para 25 - home
    Tessling, supra, at para 42
    R v Morelli, [2010] 1 SCR 253, 2010 SCC 8 (CanLII), per Fish J, at para 2 - computers
    R v Cole, [2012] 3 SCR 34, 2012 SCC 53 (CanLII), per Fish J, at para 1 - computers
    R v Lam, 2004 ABQB 289 (CanLII), (2004), 355 A.R. 355, per Burrows J, at para 30 ("An accused has standing to challenge only those intercepted communications in which he had a reasonable expectation of privacy. Prima facie this will include those intercepted communications to which he was a party, though circumstances in which an expectation of privacy would not exist in those calls may exist")
  7. Patrick, supra, at paras 20, 37
  8. British Columbia Securities Commission v Branch, 1995 CanLII 142 (SCC), [1995] 2 SCR 3, per Sopkina and Iacobucci JJ, at para 52
  9. Tessling, supra, at para 22
  10. see below reference to Tessling, supra, at paras 32 and 1j0wb43
  11. see Tessling, supra, at para 1j0wb

Factors

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

  1. presence at the time of the search; 
  2. possession or control of the property or place searched; 
  3. ownership of the property or place; 
  4. historical use of the property or item; 
  5. the ability to regulate access, including the right to admit or exclude others from the place; 
  6. the existence of a subjective expectation of privacy; and 
  7. the objective reasonableness of the expectation. 

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

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

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

  1. What was the nature or subject matter of the evidence gathered by the police?
  2. Did the appellant have a direct interest in the contents?
  3. Did the appellant have a subjective expectation of privacy in the informational content of the evidence?
  4. If so, was the expectation objectively reasonable? In this respect, regard must be had to:
    1. the place where the alleged “search” occurred
    2. whether the informational content of the subject matter was in public view;
    3. whether the informational content of the subject matter had been abandoned;
    4. whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?
    5. whether the police technique was intrusive in relation to the privacy interest;
    6. whether the use of this evidence gathering technique was itself objectively unreasonable;
    7. whether the informational content exposed any intimate details of the accused’s lifestyle, or information of a biographic nature.
  1. R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128, per Cory J, at para 45
    R v Felger, 2014 BCCA 34 (CanLII), per Garson JA
  2. R v Tessling, 2004 SCC 67 (CanLII), per Binnie J, at paras 31, 32
  3. Tessling, supra and R v Patrick, 2009 SCC 17 (CanLII), per Binnie J, at para 27

Subject Matter of the Protection

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

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

Section 8 protects persons not places.[4]

Illegal Objects

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

Nature of the Information at issue

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

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

Control

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

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

Other Circumstances Considered

Contracts of Adhesion

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

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

Public Spaces

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

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

Established Areas of Privacy

See Also

Established Areas of Privacy

Introduction

See also: Reasonable Expectation of Privacy

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

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

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

Person

Bags, Pockets, Purses

Bags and pockets are protected.[1]

An individual who attends a hospital for medical treatment is entitled to expect that his clothing will be held by the facility until discharged. Hospitals have been identified as an area of concern for the protection of privacy. [2]

Bodily Samples

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

Fingerprints

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

Photographs

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

Body Cavity

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

Inmates

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

Sound of Voice

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

Licences and registration

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

Upskirts and Down Shirts

Recording the cleavage area of a female using a hidden camera intrudes upon the female's expectation of privacy.[12]

  1. R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J
  2. R v Pickton, 2006 BCSC 1098 (CanLII), per Williams J, at para 38 citing R v Calarusso, 1994 CanLII 134 (SCC), per Lamer C.J. and Cory, McLachlin and Major JJ, at para 70
  3. R v DeJesus, 2010 ONCA 581 (CanLII), per curiam
  4. R v Jackpine (Rodgers), 2006 SCC 15 (CanLII), [2006] 1 SCR 554, (2006), 207 CCC (3d) 225 (SCC), per Charron J, at para 43 - anything taken under the Identification of Criminals Act has no REP
  5. Jackpine (Rodgers), ibid., at para 43 - anything taken under the Identification of Criminals Act has no REP
  6. R v Golden, 2001 SCC 83 (CanLII), per Charron J, at para 89
  7. R v Flintoff, 1998 CanLII 632, at para 24
  8. R v Briggs, 2001 CanLII 24113 (ON CA), per Weiler JA, at paras 33 to 35
  9. Briggs, ibid.
  10. R v Pelland, 1997 CanLII 502 (ON CA), (1997), 99 O.A.C. 62, 34 W.C.B. (2d) 356 (Ont. C.A.), per curiam - police surreptitiously record the accused voice in a public place
    R v Adam et al, 2006 BCSC 1430 (CanLII), per Romilly J, at paras 9 to 11 - use of voice may still violate s. 13 for incrimination.
  11. R v Hufsky, [1988] 1 SCR 621, 1988 CanLII 72, per Le Dain J
  12. R v Jarvis, 2019 SCC 10 (CanLII), per Wagner CJ

Vehicles

A driver has a reasonable expectation of privacy for the contents of his motor vehicle.[1] Likewise, a person in possession of a vehicle, even if not the owner, will also have a reasonable expectation of privacy.[2]

The reasonable expectation of privacy for a vehicle is low or reduced.[3] It is considered more limited than locations such as houses.[4] This applies even on any public roadway.[5]

Police, however, are entitled to perform a visual examination of the interior of a vehicle, including with the use of a flashlight, for safety purposes incidental to a lawful vehicle stop.[6]

Passengers, however, do not generally have a reasonable expectation of privacy.[7] However, in some cases they can. It will depend on the totality of the circumstances including the passenger's connection with the vehicle, the vehicle's owner, the passenger's use of the vehicle, and ability to control access to it.[8]

Door-handle

Any residues on the doorhandle of a vehicle is protected by a lowered expectation of privacy when subject to an Ion Scanner swabbing to detect the presence of drug residue.[9] However, it will still require a judicial authorization to use.[10] It is unsettled whether a swab, rather than an Ion Scan, may be available without a warrant. By analogy to drug-sniffing dogs, the presence of reasonable suspicion may be enough to perform a swab without a warrant.

  1. R v Belnavis, 1996 CanLII 4007 (Ont. C.A.), per Doherty JA; appeal dismissed 1997 CanLII 320, [1997] 3 SCR 341, per Cory J at 19
  2. R v Ahmed, 2019 SKCA 47 (CanLII), per Barrington-Foote JA, at para 18 ("Mr. Ahmed had possession of the vehicle with the permission of the owner. As such, he had a reasonable expectation of privacy in the vehicle: ...")
    Belnavis, supra, at para 33
  3. R v Alkins, 2007 ONCA 264 (CanLII) , [2007] OJ No 1348 (Ont. C.A.), per Doherty JA
    R v Shankar, 2007 ONCA 280 (CanLII), [2007] OJ No 1406 (Ont. C.A.), per Gillese JA
    R v Rebelo, 2007 ONCA 289 (CanLII), [2007] OJ No 1468 (Ont. C.A.), per curiam
    R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, per Lamer CJ, at para 15
    R v Nicolosi (1998), 1998 CanLII 2006 (ON CA), per Doherty JA, at para 9
    R v Harflett, 2016 ONCA 248 (CanLII), per Lauwers JA, at para 47
  4. R v Wise, 1992 CanLII 125, [1992] 1 SCR 527, per Cory J, at para 6 ("although there remains an expectation of privacy in automobile travel, it is markedly decreased relative to the expectation of privacy in one's home or office.")
    R v Belnavis, 1997 CanLII 320, [1997] 3 SCR 341, per Cory J
    R v Higgins, 1996 CanLII 5774 (QC CA), (1996) 111 CCC (3d) 206 (QCCA), per Otis JA, at p. 212
  5. Higgins, ibid.
  6. e.g. R v Bonilla-Perez, 2014 ONSC 2031 (CanLII), per Code J, at para 37
  7. See Standing
  8. Belnavis, supra, at p. 22
    R v Madore & Madeira, 2012 BCCA 160 (CanLII), per Finch CJ, at para 55
  9. R v Wong, 2017 BCSC 306 (CanLII), per Kent J
  10. R v Wawrykiewycz, 2020 ONCA 269 (CanLII), per Pardu JA - ("I would hold that taking samples of residue left by a suspect’s hands on the handles of a vehicle, and subjecting those samples to chemical analysis, is an intrusion for which a warrant should be required.")

Buildings

Residences

House

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

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

It can "be presumed unless the contrary is shown in a particular case that information about what happens inside the home is regarded by the occupants as private".[4]

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

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

Illegality of Activities Not Relevant

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

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

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

Non-residents Found Inside

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

A person who is merely related to the owner and possesses keys to the location may not have any expectation of privacy.[12]

Private Residences Used for Commercial Purposes

A residence that is "solely for the commercial trade in drugs" has a "diminished privacy interest".[13]

Apartment Buildings

There is a diminished, if any, privacy in the hallway of an apartment building.[14] Occupants of an apartment building are permitted to expect that the only people present would be other occuapnts or invitees, and that the public would be excluded.[15]

Filming the hallway of an apartment, whether or not the interior of the apartments are visible, without a warrant, will generally require a warrant.[16]

Covert surveillance of a hallway by an undercover officer requires a general warrant.[17]

Temporary Dwellings

A rented hotel suite has an expectation of privacy while the suspect is renting it.[18]Objects outside of plain view of the cleaner can be expected to be private despite the presence of cleaning staff.[19]

Each unit of a rooming-house will be protected by the REP of the tenant for that room.[20]

A tenant of a multi-unit building has the same expectation of privacy as a single dwelling unit. A search of a multi-unit building must set out "reasonable and probable grounds for each unit to be searched".[21]

  1. see R v Silveira, 1995 CanLII 89 (SCC), per Cory J at 463-4, 495-6 (the “historic inviolability of a dwelling-house”) and ("There is no place on earth where persons can have a greater expectation of privacy than within their "dwelling‑house"")
    R v Dhillon, 2010 ONCA 582 (CanLII), [2010] OJ No 3749 (C.A.), per Simmons JA
    R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432, 189 CCC (3d) 129, per Binnie J at 139
  2. Tessling, ibid., at para 22
    R v Silveira, 1995 CanLII 89 (SCC), [1995] 2 SCR 297, per Cory J, at para 140
  3. R v Landry, [1986] 1 SCR 145, 1986 CanLII 48 (SCC), per Estey J, at para 85 ("At present the rule is clear. Absent well recognized and widely supported exceptions, they may not enter private homes. These exceptions apart, their authority ends at the door. That rule protects them and the public from violence.")
  4. Tessling, supra, at para 144
  5. R v Sutherland, 2000 CanLII 17034 (ON CA), (2000), 150 CCC (3d) 231 (Ont. C.A.), per Carthy JA, at para 239 ("search of a dwelling house must be approached with the degree of responsibility appropriate to an invasion of a place where the highest degree of privacy is expected") see also para 23 citing US case of Gooding v US
  6. R v Gomboc, [2010] 3 SCR 211, 2010 SCC 55 (CanLII), at para 46
  7. Silveira, supra, at para 41
  8. R v DLW, 2012 BCSC 1700 (CanLII), per Romilly J, at para 38
    ("A person has a restricted objective expectation of privacy when legislation authorizes the police’s intrusion into that person’s privacy.")
  9. R v Kokesch, 1990 CanLII 55 (SCC), [1990] 3 SCR 3, 61 CCC (3d) 207, per Dickson CJ, at p. 218 ("... This court consistently has held that the common law rights of the property holder to be free of police intrusion can be restricted only by powers granted in clear statutory language.")
  10. e.g. R v Jones, 2013 BCPC 149 (CanLII), per Woods J
    R v Vi, 2008 BCCA 481 (CanLII), per Finch CJ
  11. Edwards, supra - no REP in residence of accused girlfriend's home
  12. e.g. R v Edwardsen, 2019 BCCA 259 (CanLII), per Harris JA, at para 58
  13. R v Nguyen, 2011 ONCA 465 (CanLII), 273 CCC (3d) 37, per Blair JA, at para 61 R v Shin, 2015 ONCA 189 (CanLII), per Gillese JA, at para 68
  14. R v Brar, 2008 MBQB 1 (CanLII), per MacInnes J, at para 44
  15. R v Pipping, 2020 BCCA 104 (CanLII), per Garson JA
  16. R v Batac, 2018 ONSC 546 (CanLII), per Dambrot J
    R v Sandhu, 2018 ABQB 112 (CanLII), per Antonio J
  17. Pipping, supra
  18. R v Mercer, 1992 CanLII 7729 (ONCA), per Arbour JA - police were let into a hotel room by the owner after a cleaner found an amount of cash and drugs in a pillow case in closet
    see also US v Domenech, 6th Circuit Court of Appeals
  19. Mercer
  20. R v Campbell, [2011] 2 SCR 549, 2011 SCC 32 (CanLII), per Charron J
  21. Campbell, ibid.

Non-dwelling Premises

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

Workplaces and Businesses

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

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

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

Schools

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

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

Public Washrooms

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

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

Holding Cells and Prisons

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

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

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

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

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

Airports and Border Crossings

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

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

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

Outdoor Areas

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

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

Storage

Schools

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

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

Storage Lockers

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

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

Suit Cases

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

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

Packages

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

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

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

Garbage

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

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

  1. R v Patrick, [2009] 1 SCR 579, 2009 SCC 17 (CanLII), per Binnie J, at para 30
  2. R v Sipes, 2008 BCSC 1500 (CanLII), per Smart J and 2012 BCSC 1948 (CanLII), per Smart J
    Patrick, supra

Business Records

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

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

Several lines of cases have developed on the issue of whether there is a reasonable expectation of privacy in subscriber information associated with business accounts, in particular IP addresses.[3]Generally they have sided on there not being privacy rights in "tombstone" information of a person since it is freely available to the public.[4] In certain cases this will turn on the service contract. Where a contract is not in evidence a court is more likely to find in favour of there being a expectation of privacy.[5]

Whether a person has a bank account with a particular bank does not have a reasonable expectation of privacy because that information does not reveal any core biographical information.[6]

Employment Records

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

Records Produced in Ordinary Course of Business

Those records produced during the ordinary course of business of regulated activities will have a diminished expectation of privacy.[8]

Documents Seized During a Regulatory Inspection

Documents seized during a regulatory inspection are not subject to a REP.[9]

Utility Records

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

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

Service Providers

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

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

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

Personal Communications

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

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

Subject matter of Intrusion

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

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

Control

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

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

Awareness of lack of privacy

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

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

Social Media and Text Messages

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

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

Protections Upon "Electronic Conversations"

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

An electronic communication by Facebook messenger between romantic partners may or may not require a warrant, depending on the circumstances. Where the texts Between the complainant and accused corroborate the allegations made by the complainant, there a suggestion that there is no expectation of privacy.[4]

Depending on the "totality of circumstances", the sender of text messages that have been received by the recipient may still be able to retain privacy rights over the content of the messages.[5] This, however, does not mean that a sender always has an expectation of privacy, it will depend on the case-by-case analysis under Edwards.[6]

The existence of a REP will be case-specific. It will include consideration of the "nature of the communication".[7]

Loss of control over the communication is not determinative of the issue.[8]


Undercover Online Police

It seem communications with undercover police officers online would not engage a privacy protection.[9]

Facebook

An open facebook profile containing broadcast communications are not protected by a reasonable expectation of privacy.[10]

  1. e.g. see R v McIsaac, 2005 BCSC 385 (CanLII), [2005] BCJ No. 946 (SC), per Parrett J
    R v Bartkowski, 2004 BCSC 44 (CanLII), [2004] BCJ No. 2950 (SC), per Macaulay J
    R v Ballantyne, 2008 BCSC 1566 (CanLII), per Chamberlist J
  2. R v Marakah, 2017 SCC 59 (CanLII), per McLachlin CJ
    R v Pelucco, 2015 BCCA 370 (CanLII), per Groberman JA
    R v Craig, 2016 BCCA 154 (CanLII), per Bennett JA
    cf. R v Lowrey, 2016 ABPC 131 (CanLII), per Rosborough J - police access Facebook account of luring victim and seize text messages between victim and accused
  3. Marakah, supra, at para 20
  4. R v WM, 2019 ONSC 6535 (CanLII), per Davies J
  5. R v Marakah, 2017 SCC 59 (CanLII), per McLachlin CJ, at para 4 ("...depending on the totality of the circumstances, text messages that have been sent and received may in some cases be protected under s. 8 and that [the sender] had standing to argue that the text messages at issue enjoy s. 8 protection.")
  6. R v Vickerson, 2018 BCCA 39 (CanLII), per Bennett JA, at para 54
  7. R v MS, 2019 ONCJ 670 (CanLII), per Chapman J, at para 68
  8. Marakah, supra
  9. R v Graff, 2015 ABQB 415 (CanLII), per Neilsen J
    R v Kwok, [2008] OJ No 2414(*no CanLII links)
    R v Caza, 2012 BCSC 525 (CanLII), per Powers J
    R v Ghotra, [20015] OJ No 7253 (ONSC) (*no CanLII links) , per Durno J
    R v Vader, 2016 ABQB 309 (CanLII), per Thomas J - cell phone text messages obtained from ISP by production order after they have been sent
    R v Mills, 2017 NLCA 12 (CanLII), per Welsh JA leave to appeal to SCC granted - involved active screen capture by the police officer
  10. R v Patterson, 2018 ONSC 4187 (CanLII), per Bawden J, at paras 6, 8, 21 and 33

Electronic Devices

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

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

Computers

Generally

Any electronic device (computer, cell phone, etc) will contain information detailing a persons life that can be "deeply personal". Personal information can be found in: [1]

  • Contact Information (detailing names, addresses, phone numbers, e-mail addresses and similar information);
  • Internet Browsing (history of websites, log-in information, passwords, form data);
  • Calendars;
  • Photographs and videos;
  • Messages (emails, texts, voicemails);
  • Phone Call Logs (dialled/received/missed calls, caller identification);

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

Home and Personal Computers

Home and personal computers are imbued with a high degree of privacy due to the frequency that it contains intimate correspondence, financial, medical, or personal information. In addition to our personal interests and tastes.[3] According to the Morelli court, the level of privacy does not get much higher.[4]

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

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

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

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

The search of a computer cannot always be precise. An investigating officer looking for a particular piece of evidence may need to diverge into several areas of the hard drive in the same way as a person searching a house would look into a number of draws of a bedroom before finding evidence.[10]

A computer seized as under plain view under s. 489 during the execution of a general residential search warrant is permissible. However, the search of its contents may require a warrant.[11]

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

School and Workplace Computers

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

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

  1. see discussion in R v Polius, 2009 CanLII 37923 (ON SC), [2009] OJ No 3074 (Sup. Ct.), per Trafford J
  2. Cole, supra, at para 54
  3. R v Morelli, 2010 SCC 8 (CanLII), per Fish J, at para 105
  4. Morelli, ibid., at para 2: (“It is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer.”
  5. R v Vu, 2013 SCC 60 (CanLII), per Cromwell J, at paras 42, 43
  6. R v Choudry, [2009] O.J. No 84 (ONSC)(*no CanLII links)
    R v Little, 2009 CanLII 41212 (ONSC), per Fuerst J
    Polius, supra
  7. R v Graham, 2010 ONSC 119 (CanLII), [2010] OJ No 146 (Sup. Ct.), per Desotti J: ( Defence argued a high degree of privacy in the computer at the repair shop, the judge said "I agree that in other factual situations that a court may have to consider, those other concerns [of Defence] might have a more prominent place. I do not have those facts before me.")
    R v Winchester, 2010 ONSC 652 (CanLII), [2010] OJ No 281 (Sup. Ct.), per Valin J, at para 36: (“while I am not prepared to find that the applicant had no expectation of privacy in the contents of the computer when he left it at the store, I do find that this expectation was significantly reduced.”)
  8. R v Piette, 2009 QCCQ 14499 (CanLII), per Bonin J a computer repairman makes copy of child abuse images found on computer onto a CD and gives it to police. The court found no REP on CD so no need for warrant
  9. R v Pommer (2008), 58 C.R. (6th) 319, 2008 CarswellBC 1181, 2008 BCSC 423 (CanLII), (B.C. S.C.), per D Smith J
  10. R v Stemberger, 2012 ONCJ 31 (CanLII), per Borenstein J, at paras 99, 110
  11. R v Little, 2009 CanLII 41212 (ON SC), per Fuerst J
  12. R v Tuduce, 2014 ONCA 547 (CanLII), per Gillese JA
  13. R v Cole, 2009 CanLII 20699 (Sup. Ct.), per Kane J rev'd 2011 ONCA 0218 aff'd 2012 SCC 53 (CanLII), per Fish J
    R v Ritter, 2006 ABPC 162 (CanLII), (2006), 402 A.R. 249 (Prov. Ct.), per Fraser J
  14. Cole, supra
  15. R v McNeice, 2013 BCCA 98 (CanLII), per Finch JA

Online Data

Online Information

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

  1. R v Ward, 2012 ONCA 660 (CanLII), per Doherty JA, at paras 71, 74
    R v Spencer, 2014 SCC 43 (CanLII), per Cromwell J

Peer-to-Peer Software

Software installed on a computer that enables other persons on a network to access information and files on a computer, such as Peer-to-Peer software, is relevant to the courts usually in a child pornography cases.

US Courts have concluded that files found on a computer that are accessible and transferable over a peer-to-peer do not have a reasonable expectation of privacy due to the intention of the user.[1]

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

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

Contents of Cell Phones

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

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

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

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

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

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

Closed Circuit Television

CCTV cameras recording public places outside do not have a reasonable expectation of privacy.[1]

Cameras found in common areas and hallways of apartment buildings are not protected by an expectation of privacy.[2]

CCTV footage from a commercial grocery store is not protected by an expectation of privacy.[3]

  1. R v Lebeau, 1998 CanLII 14635 (ON SC) , 41 C.C.C. (3d) 163, [1998] O.J. No. 51 (C. A.), per Ferrier J
    R v Shortreed, 1990 CanLII 10962 (ON CA) , 54 C.C.C. (3d) 292, [1990] O. J. No. 145 (C.A.), per LaCourciere JA
    Brown v Durham Regional Police, 1998 CanLII 7198 (ON CA), per Ferrier J
    R v Elzin, 1993 CanLII 3860 (QC CA) , 82 C.C.C. (3d) 455 (Que. C.A.), per Chevalier J
    R v Bryntwick, 2002 CanLII 10941 (ON SC) , [2002] O.J. No. 3618 (S.C.J.), per Dunn J
  2. R v Zekarias, 2018 ONSC 4752 (CanLII), per MF Brown J
    R v Law, 2017 BCSC 1241 (CanLII), per Law J, at para 94
  3. R v Merritt, 2017 ONSC 366 (CanLII), per F Dawson J, at para 115

Vehicle Data Recorders

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

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

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

Other Electronics devices

A building fob containing logs entry and exit of holder does not have an expectation of privacy.[1]

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.[1]

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.[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]

Entey to a Residence

The Police cannot enter into a private dwelling without a warrant, consent of the homeower(s), or without exigent circumstances.[5]

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

Categories of Searches

There are several types of warrantless searches:

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

See Also

Statutory Warrantless Search Powers

General Principles

See also: Ancillary Powers Doctrine

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.

International Borders

At international border crossings all personal zones of privacy are subject to a "diminished expectation of privacy".[1]

  1. R v Simmons, 1988 CanLII 12 (SCC), [1988] 2 SCR 495, per Dickson CJ, at paras 48 to 50

Powers to Search

Examination of goods

99 (1) An officer may

(a) at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts;
(b) at any time up to the time of release, examine any mail that has been imported and, subject to this section, open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods referred to in the Customs Tariff, or any goods the importation of which is prohibited, controlled or regulated under any other Act of Parliament, and take samples of anything contained in such mail in reasonable amounts;
(c) at any time up to the time of exportation, examine any goods that have been reported under section 95 and open or cause to be opened any package or container of such goods and take samples of such goods in reasonable amounts;
(c.1) at any time up to the time of exportation, examine any mail that is to be exported and, subject to this section, open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods the exportation of which is prohibited, controlled or regulated under any Act of Parliament, and take samples of anything contained in such mail in reasonable amounts;
(d) where the officer suspects on reasonable grounds that an error has been made in the tariff classification, value for duty or quantity of any goods accounted for under section 32, or where a refund or drawback is requested in respect of any goods under this Act or pursuant to the Customs Tariff, examine the goods and take samples thereof in reasonable amounts;
(d.1) where the officer suspects on reasonable grounds that an error has been made with respect to the origin claimed or determined for any goods accounted for under section 32, examine the goods and take samples thereof in reasonable amounts;
(e) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any goods, examine the goods and open or cause to be opened any package or container thereof; or
(f) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any conveyance or any goods thereon, stop, board and search the conveyance, examine any goods thereon and open or cause to be opened any package or container thereof and direct that the conveyance be moved to a customs office or other suitable place for any such search, examination or opening.

(2) and (3) [Repealed, 2017, c. 7, s. 52]
Samples (4) ...
R.S., 1985, c. 1 (2nd Supp.), s. 99; 1988, c. 65, s. 79; 2001, c. 25, s. 59; 2017, c. 7, s. 52.

Goods

The meaning of "goods" is defined broadly, stating that it "includes conveyances, animals and any document in any form."

The reference to "documents in any form" also includes "electronic documents".[1]

  1. R v Canfield, 2018 ABQB 408 (CanLII), per Belzil J, at para 58
    R v Leask, [2008] OJ No. 329, 2008 ONCJ 25 (CanLII), per Nadel J, at para 16
    R v Saikaley, [2012] ON No. 6024, 2012 ONSC 6794 (CanLII), per Lalonde J, at para 70
    R v Moroz, 2012 ONSC 5642 (CanLII), per Desotti J, at para 20

Electronic Devices

Fearon test

The test for searching electronic devices incident to arrest does not apply at border crossings.[1]

  1. United States of America v Amadi, 2018 ONSC 727, per Dambrot J, at para 84

Constitutionality

It is not necessary that a search be based on reasonable grounds to believe an offence has been committed or that evidence will be found on inspection.[1]

The reduction of privacy rights at borders to protect Canadian sovereignty is a "sufficiently important objective" within s. 1 of the Charter analysis.[2]

It is also a valid exercise of Parliament's criminal law powers.[3]

Section 99(1)(a) of the Customs Act does not violate s. 8 of the Charter.[4]

  1. R v Jones (2006), 2006 CanLII 28086 (ON CA), 211 CCC (3d) 4 (CA), per Doherty JA, at para 30
    R v Singh, 2014 ONSC 5658 (CanLII), 317 CCC (3d) 446, per Pomerance J, at para 49
  2. R v Canfield, 2018 ABQB 408 (CanLII), per Belzil J, at para 77
  3. Little Sisters Book & Art Emporium v Canada, 2000 SCC 69 (CanLII), per Binnie J, at para 148
  4. Canfield, supra

See Also

Manner of Search

General Principles

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

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

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

Use of Force During Search

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

Protection of persons acting under authority

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

(b) as a peace officer or public officer,

...
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Idem

(2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.

When not protected

(3) Subject to subsections (4) [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.


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

CCC


Note up: 25(1), (2), (3), and (4)

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

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

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

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

Strip Searches

Timing of Search

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

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

See Also

Warrantless Searches

Introduction

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.[1]

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.[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]

Entey to a Residence

The Police cannot enter into a private dwelling without a warrant, consent of the homeower(s), or without exigent circumstances.[5]

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

Categories of Searches

There are several types of warrantless searches:

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

See Also

Consent Search

General Principles

A search by consent is one form of warrantless search. A search conducted with valid consent is lawful.[1]

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

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

For consent to be valid it must be voluntary and informed. Voluntary search requires that the consent to be given without coercion.[3]

Informed consent

Informed consent to a search requires the accused to be aware of the right to refuse the search and the consequences of consenting to the search.[4]The party expressing "consent must be possessed of the requisite informational foundation for a true relinquishment of the right. A right to choose requires not only the volition to prefer one option over another, but also sufficient available information to make the preference meaningful.”[5]

Notice of Right to Refuse

The cases are divided on whether the police need to give clear instructions on the right to refuse. [6] Courts opposed to the requirement, state that the standard of informed consent is less than the informational component of s. 10(b). The police need not tell 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.[7] Where the accused is in custody, there is a onus to inform the accused of their right to refuse.[8]

Waiver

The Crown must establish that the accused right to be searched was waived clearly and unequivocally.[9] However, where the accused is given access to counsel there is a presumption of informed consent unless the accused shows otherwise.[10]

Effect of Consent

Once consent is given there is no future expectation of privacy.[11]

Invalidating consent

A threat to get a warrant when the officer knows there is no grounds to do so can invalidate consent to search.[12] 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.[13]

Coercion

Coercion will exist where there are threats made should the accused refuse to give consent.[14]

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.[15]

Burden

The burden is upon the Crown to prove consent on a balance of probabilities.[16]

  1. R v Chang, 2003 ABCA 293 (CanLII), per curiam, at para 28
  2. R v Wills, 1992 CanLII 2780 (ON CA), (1992), 70 CCC (3d) 529, per Doherty JA, at p. 69
    R v Cooper, 2011 ABQB 17 (CanLII), per Kenny J, at paras 35 to 41
    R v Borden, 1994 CanLII 63, [1994] 3 SCR 145, per Iacobucci J
    R v Rutten, 2006 SKCA 17 (CanLII), per Smith JA, at para 35
    R v Kennedy, 2000 BCCA 362, per Braidwood JA
    R v Roy, 2010 BCCA 448, per Lowry JA
  3. R v Bergauer-Free, 2009 ONCA 610 (CanLII), per Moldaver JA, at para 57
    See also R v Goldman, 1979 CanLII 60 (SCC), [1980] 1 SCR 976, per Mclntyre J, at p. 1005
  4. Wills, supra
    R v Borden, 1994 CanLII 63 (SCC), (1994), 33 C.R. (4th) 147, per Iacobucci J at 158
    R v SS, 2008 ONCA 578 (CanLII), per Doherty JA, at paras 48, 52
    cf. R v Lupien, 1995 CanLII 5211 (QC CA), (1995) 68 QAC 253 (CA), per Rothman JA
    R v Blackstock, 1997 CanLII 14495 (ON CA), (1997) 10 CR 5th 385 (ONCA), per curiam
    US v Drayton 536 US 194 (2002) - police need not inform of right as long as there was no coercion, intimidation, or confrontation
  5. R v Borden, 1994 CanLII 63 (SCC), [1994] 3 SCR 145, per Iacobucci J
  6. R v Rutten, 2006 SKCA 17 (CanLII), per Smith JA, at paras 39 to 44, the court stated that permission to enter to search a dwelling must include information on the person's right to refuse
  7. R v Lewis (1998) 122 CCC (3d) 481 (ONCA), 1998 CanLII 7116 (ON CA), per Doherty JA
    Blackstock, supra, at to 5 paras to 5{{{3}}}
  8. Blackstock, supra, at to 5 paras to 5{{{3}}}
  9. R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265, per Lamer J
  10. R v Williams, 1992 CanLII 295 (BC SC), (1992) 76 CCC 385 (BCSC), per Melnick J
    R v Deprez (1994) 95 CCC 29 (MBCA), 1994 CanLII 16612 (MB CA), per Scott CJ
  11. R v Arp, [1998] 3 SCR 339, 1998 CanLII 769 (SCC), per Cory J at 90
  12. R v O’Connor, 2002 CanLII 3540 (ON CA), per O'Connor ACJ, at paras 74, 75
  13. O’Connor, ibid., at para 75
  14. R v Bergauer-Free, 2009 ONCA 610 (CanLII), per Moldaver JA - police threaten to bring in the canine unit should consent be refused. This was found to be "colorably lawful coercion"
  15. Wills, supra (“where the Crown relies on the consent of an individual as authorization for a seizure and fails to establish the validity of that consent, then the seizure cannot be brought within s. 8 based upon the police officer’s perception of the validity of the consent”)
    R v Reeves, 2017 ONCA 365 (CanLII), per LaForme JA, at para 71
  16. Wills, supra, at p. 353
    R v Colson, 2008 ONCA 21 (CanLII), 88 O.R. (3d) 752, per Blair JA, at para 23 leave denied [2008] SCCA No 101
    R v Simon, 2008 ONCA 578 (CanLII), per Doherty JA, at para 49
    Rutten, supra, at para 36

Consent to Enter Residence to Arrest

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

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

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

Consent to Enter Residence to Search

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

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

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

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

Implied Licence

The "occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property” [1] The licence "ends at the door of the dwelling."[2] Privacy rights are waived unless there is a clear expression of intent rebutting this.[3]

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

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

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

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

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

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

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

Authority to Consent and Third Party Consent

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

Third party consent by a wife or parent requires that the police also have diffident grounds to get a search warrant at the time.[2]

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.[3]

Issues of consent seizure will most often be dealt with by way of warrantless seizure under s. 489.[4]

  1. R v Reeves, 2018 SCC 56 (CanLII), per Karakatsanis J
    R v Cole, 2012 SCC 53 (CanLII), per Fish J
  2. R v Barrett, [1995] OJ No 920 (Ont. C.J.)(*no CanLII links)
  3. R v DiPalma, 2008 BCCA 342 (CanLII), per Smith JA
  4. R v RMJT, 2014 MBCA 36 (CanLII), per Cameronn JA, at para 29

Joint Residency

An "authorized occupant" of a residence may give consent to a search.[1] This will usually include the homeowner. [2]

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".[3]

A landlord or neighbour does not constitute an "authorized occupant".[4]

Guests can have the authority to consent to a search of a home, however, the authorization can be revoked by the homeowner.[5]

The seizure of property "under mistaken authority is not necessarily fatal where authority otherwise exits".[6]

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.[7] Parents who exercise control over a child's room or property may remove any expectation of privacy.[8]

  1. R v Duarte (1987) 38 CCC (3d) 1 (ONCA), 1987 CanLII 175 (ON CA), per Cory JA, at p. 11
    R v Currie, 2008 ABCA 374 (CanLII), per Côté JA - resident gave consent to search house containing items of non-resident accused
  2. R v Smith, 1998 ABCA 418 (CanLII), per Conrad JA, at para 5
  3. R v Reeves, 2018 SCC 56 (CanLII), per Karakatsanis J, at para 47
  4. R v Mercer, 1992 CanLII 7729 (ON CA), (1992) 70 CCC 180 (ONCA), per Arbour JA - landlord
    R v Blinch (1993) 83 CCC (3d) 158 (BCCA), 1993 CanLII 1433 (BC CA), per Rowles JA
  5. R v Thomas, 1991 CanLII 2736 (NL CA), per Goodridge CJ aff'd at SCC
  6. R v RMJT, 2014 MBCA 36 (CanLII), per Cameron JA, at para 64
  7. R v DMF, 1999 ABCA 267 (CanLII), (1999), 139 CCC (3d) 144 (Alta.C.A.),
    R v Figuerora, [2002] OJ No 3138 (Ont. S.C.J.)(*no CanLII links)
    R v Scheck, 2002 BCSC 1046 (CanLII), [2002] BCJ No. 1671 (B.C.S.C.)
  8. F(DM), supra

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.[1]


Employer Consent

An employer cannot provide consent to examine the contents of an employee's computer where they hold any reasonable expectation of privacy.[2]

  1. R v Reeves, 2018 SCC 56 (CanLII), per Karakatsanis J
  2. Cole, supra, at paras 74 to 79

Mandatory Consent

A court order, such as a probation order, can in certain circumstances require an offender to consent to random searches.[1]

  1. R v Unruh, 2012 SKCA 72 (CanLII), per Herauf JA

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

Search Incident to Detention

General Principles

See also: Investigative Detention

There is a common law power to search incident to detention where "the officer … believe[s] on reasonable grounds that his or her own safety, or the safety of others, is at risk."[1] If the search goes beyond the purpose of officer safety and becomes investigative then a lawful search can become unlawful.[2]

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

  1. R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59, per Iacobucci J, at para 40 ("The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. ...the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. ... The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances.") and 45 ("... police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. ")
    See also R v Clayton, 2007 SCC 32 (CanLII) , [2007] 2 SCR 725, per Abella J
    see also R v Plummer, 2011 ONCA 350 (CanLII), per MacPherson JA
  2. R v Calderon, 2004 CanLII 7569 (ON C.A.), per Laskin JA
    R v Logan, 2005 ABQB 321 (CanLII), per Macklin J
    R v Byfield, 2005 CanLII 1486 (ON C.A.), per Rosenberg JA
    R v Cooper, 2005 NSCA 47 (CanLII), per Fichaud JA
  3. Plummer, supra

Search of Person

Religious Dressings

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

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

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

Vehicle Searches

A warrantless search of a vehicle may be reasonable where there are reasonable grounds to believe the vehicle contained illegal items.[1] This however is limited to situations in which the vehicle could be moved "quickly" and there is a risk that the evidence may be lost if an attempt was made to get a search warrant first.[2]

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

  1. that the vehicle be stopped or the occupants be detained lawfully;
  2. that the officer conducting the search has reasonable and probable grounds to believe that an offence has been, is being or is about to be committed and that a search will disclose evidence relevant to that offence;
  3. that exigent circumstances, such as imminent loss, removal or destruction of the evidence, make it not feasible to obtain a warrant;
  4. that the scope of the search itself bear a reasonable relationship to the offence suspected and the evidence sought.
  1. R v McComber, (1988), 44 CCC (3d) 241 (Ont. C.A.), 1988 CanLII 7062 (ON CA), per Dubin ACJO
    Johnson v Ontario (Minister of Revenue), 1990 CanLII 6742 (ON CA), (1990), 75 O.R. (2d) 558 (Ont. C.A.), per Arbour JA
    See also R v Ruiz, 1991 CanLII 2410 (NB C.A.), per Angers JA
    R v McKarris, [1996] 2 SCR 287 1996 CanLII 205 (SCC), per Sopinka J
    R v Damianakos; Regina v Klimchuk, 1991 CanLII 3958 (BC C.A.), per Wood JA
    R v Lee, 1995 CanLII 1135 (BC C.A.), per Wood JA
    R v Caslake, [1998] 1 SCR 51, 1998 CanLII 838 (SCC), per Lamer CJ
    R v Nicolosi, 1998 CanLII 2006 (ON C.A.), per Doherty JA
  2. R v Klimchuk, 1991 CanLII 3958 (BC CA), (1991), 67 CCC (3d) 385 (BCCA), per Wood JA
    see also R v Rao, 1984 CanLII 2184 (ON CA), (1984), 12 CCC (3d) 97 (Ont. C.A.), per Martin JA
    R v Debot, (1986), 30 CCC (3d) 207 (Ont. C.A.), 1986 CanLII 113 (ONCA), per Martin JA
  3. R v IDD, 1987 CanLII 206 (SKCA), per Sherstobitoff JA

Roadside Stops

Even if the police have lawful grounds to stop a vehicle this does not allow a search of the vehicle unless there are "reasonable grounds".[1]

Check stop programs aimed to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars cannot be used by the police to search beyond its aims.[2] However, roadblocks set-up to search vehicles in order to catch suspects fleeing an armed robbery was considered a lawful search given the existence of a basis for investigative detention and the relative seriousness of the offence.[3]

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

Several provincial acts permit searching of vehicles without a warrant:

  • Section 107 of Alberta’s Gaming and Liquor Act, RSA 2000, c G-1 permits search where there is reasonable probable grounds are established that the act has been violated.
  1. R c Higgins, 1996 CanLII 5774 (QC C.A.), per curiam
  2. R v Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 SCR 615, per Cory J
  3. R v Stephens, [1993] BCJ No. 3017 (B.C.S.C.)(*no CanLII links)
    R v Jacques, 1996 CanLII 174, [1996] 3 SCR 312, per Gonthier J
    R v Murray, 136 CCC (3d) 197 (Que. C.A.), 1999 CanLII 13750, per curiam
  4. R v Burachenski, 2010 BCCA 159 (CanLII), per Bennett JA ("the law is clear that the police are entitled to search a vehicle for identifying documentation when it is not produced by a driver who is being investigated for an offence.")

Seizure Incident to Detention

Case Digests

Search Incident to Arrest

General Principles

See also Warrantless Arrests for details on arrest powers
Common Law Rule for Search

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

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

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

Authority Arises from Arrest Power

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

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

This common law power is an exception to the usual requirement of "reasonable grounds" for a search. The Officer must subjectively believe that person is committing or has committed an indictable offence and their belief is based on objectively reasonable grounds.[9]

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

Valid Objective

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

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

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

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

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

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

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

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

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

Seizure of Evidence upon Discovery

A peace officer may also take property from a person which the officer reasonably believes is connected with the offence charged, or which may be used as evidence against the person arrested. [20] This power is derived from the common law. [21]

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

Level of Interference

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

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

Timing of Search

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

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

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

  1. Cloutier v. Langlois, [1990] 1 SCR 158, 1990 CanLII 122 (SCC), per L'Heureux-Dube J - first case recognizing exception to warrant requirement
    R v Stillman, 1997 CanLII 384 (SCC), (1997), 5 C. R. (5th) 1 (SCC), per Cory J
    R v Golden, 2001 SCC 83 (CanLII), [2001] 3 SCR 679, per Iacobucci and Arbour JJ, at para 23
    Compare with US perspective: United States v Robinson, 414 U.S. 218 (1973)
    Golden, ibid., at p. 488
  2. R v Hiscoe, 2013 NSCA 48 (CanLII), per Oland JA (3:0), at para 33
  3. R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, per Lamer CJ, at paras 13, 17
  4. Caslake, supra, at paras 20, 22 ("some reasonable prospect of securing evidence of the offence for which the accused is being arrested")
    Hiscoe, supra, at para 38 ("reasonable basis")
  5. R v Blais, 2004 CanLII 8466 (ON C.A.), per Rosenberg JA (3:0)
  6. R v Bulmer, 2005 SKCA 90 (CanLII), per Jackson JA (3:0)
  7. Caslake, supra, at para 17
  8. Caslake, supra, at para 13
  9. R v Rajaratnam, 2006 ABCA 333 (CanLII), per curiam, at para 20
  10. R v Mohamad, 2004 CanLII 9378 (ON CA), (2004), 69 O.R. (3d) 481 (C.A.), per Cronk JA (3:0) , at para 28
  11. Stillman, supra, at p. 278 ("This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search.")
  12. Stillman, supra ("The search must be for a valid objective ..., such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused.")
    Caslake, supra, at para 22
  13. Caslake, supra, at para 19
    see also R v Fearon, 2014 SCC 77 (CanLII), per Cromwell J (4:3) - modifies "valid law enforcement purposes" for cell searches
  14. see also Cloutier v Langlois, 1990 CanLII 122 (SCC), [1990] 1 SCR 158, per L'Heureux-Dubé J
  15. Caslake, supra, at paras 10, 20, 25
  16. Caslake, supra, at para 22
  17. R v Majedi (M.F.), 2009 BCCA 276 (CanLII), per Chiasson JA (3:0), at para 19 - summarizing Caslake
  18. R v Mann, 2004 SCC 52 (CanLII), per Iacobucci J (5:2), at para 40
  19. Stillman, supra
  20. R v Morrison, 1987 CanLII 182 (ON C.A.), (1987), 35 CCC (3d) 437, per Dubin JA
    see also s. 489
  21. Cloutier v Langlois, supra
  22. R v Strilec, 2010 BCCA 198 (CanLII), per Ryan JA (3:0)
    R v Wint, 2009 ONCA 52 (CanLII), per curiam (3:0)
  23. Hiscoe, supra, at para 37
  24. Stillman, supra, at para 158
  25. e.g. Caslake, supra, at para 24 - search of vehicle for inventory purposes occurred 6 hours after arrest was unlawful. ("There is no need to set a firm deadline on the amount of time that may elapse before the search can no longer said to be incidental to arrest. As a general rule, searches that are truly incidental to arrest will usually occur within a reasonable period of time after the arrest")
    Fearon, [2014] 3 SCR 621, 2014 SCC 77 (CanLII), per Cromwell J (4:3)
  26. Caslake, supra, at para 24 ("A substantial delay does not mean that the search is automatically unlawful, but it may cause the court to draw an inference that the search is not sufficiently connected to the arrest. Naturally, the strength of the inference will depend on the length of the delay, and can be defeated by a reasonable explanation for the delay.")
  27. Lawful:
    R v Farmakis, 2011 NSSC 101 (CanLII), per Duncan JA, at paras 98 to 112
    R v Nolet, [2010] 1 SCR 851, 2010 SCC 24 (CanLII), per Binnie J, at para 50
    R v Washington, 2007 BCCA 540 (CanLII), per Ryan JA (2:1), at para 97, denied leave [2007] SCCA No 570
    R v Eden and Perry, 2004 NBQB 338 (CanLII), per Grant J, affirmed on other grounds [2005] NBJ No. 472 (C.A.)
    R v Clarke, [2003] OJ No 3884, 2003 CanLII 64244 (ON SC), per Ferrier J, at paras 217 to 226
    R v Miller, 1987 CanLII 4416 (ON CA), [1987] OJ No 989 (C.A.), per Goodman JA (3:0), at para 25
    Unlawful:
    R v Hiscoe, 2013 NSCA 48 (CanLII), per Oland JA - one month before searching cell phone
    R v DJS, [2002] BCJ No. 1198 (Sup. Ct.)(*no CanLII links) , at paras 29-30
    R v MC, [1994] OJ No 3181 (Gen. Div.)(*no CanLII links) , at para 19
  28. R v Sinclair, 2005 MBCA 41 (CanLII), per Freedman JA, at para 18

Person Arrested

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

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

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

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

Strip Searches

See also: Manner of Search#Strip Searches

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

They are considered highly intrusive because:[2]

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

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

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

Necessary Grounds

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

Burden or Onus

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

It Should Not be Routine

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

Manner of Search

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

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

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

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

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

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

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

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

Taking Bodily Samples

See also: Seizure of Bodily Samples

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

Penile Swabs

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

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

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

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

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

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

Residences

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

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

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

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

  1. R v Rao, 1984 CanLII 2184 (ON CA), (1984), 12 CCC (3d) 97 (ON CA), per Martin JA (5:0)
    R v Plourde (1985), 23 CCC (3d) 463, 1985 CanLII 3513 (QC CA), per Dube JA (3:0) - search of residence upon arresting accused for sex assault
  2. see Warrantless Entry into Dwellings in Exigent Circumstances
  3. R v Ewart, 1995 CanLII 759 (BC CA), per Hinds JA (3:0) - accused arrested at front door for drug offence
    R v Luu, 2006 BCCA 73 (CanLII), per Smith JA (3:0)
    R v RST, 2007 MBQB 166 (CanLII), per Scurfield J

Motor Vehicles

The common law power of police to search incident to arrest can include the accused's motor vehicle.[1] An officer may search a vehicle incidental to arrest where it is for a valid purpose related to the offence and where the officer reasonably believed that the search would be only to achieved that legitimate purpose.[2] There is no heightened expectation of privacy justifying an exemption from the usual common law principles of search incident to arrest.[3] For example, a search of a brief case found in a stolen vehicle incident to arrest is justified.[4] The presumption of unreasonableness of a warrantless search is rebutted upon proof that the arrest was lawful and the search was reasonable.[5]

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

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

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

Vehicle Search Incident to Arrest Warrant

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

Vehicle Seizure

Where the police seize a vehicle for the purpose of removing it from the road, there is a lessened expectation of privacy. Thus, any contents of the vehicle in plain view upon entering the vehicle can be seized.[10]

Requesting Driver's Licence

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

  1. R v Polashek, 1999 CanLII 3714 (ON CA), (1999), 134 CCC (3d) 187 (Ont. C.A.), per Rosenberg JA (3:0)
    R v Alkins, 2007 ONCA 264 (CanLII), per MacPherson JA (3:0)
  2. R v Parchment, 2007 BCCA 326 (CanLII), per Smith JA (3:0)
    Caslake, supra, at para 19
  3. R v Caslake, 1998 CanLII 838, [1998] 1 SCR 51, per Lamer CJ (7:0)
    R v Stillman, 1997 CanLII 384 (SCC), [1997] 1 SCR 607, per Cory J (4:3)
  4. R v Mohamad, 2004 CanLII 9378 (ON C.A.), 182 CCC (3d) 97 (Ont. C.A.), per Cronk JA (3:0)
  5. R v Klimchuk (1991), 67 CCC (3d) 385, 1991 CanLII 3958 (BC CA), per Wood JA (2:1)
  6. R v Tran, 2003 ABPC 132 (CanLII), per Lefever J
  7. R v Smellie, 1994 CanLII 1612 (BC CA), per Ryan JA (3:0)
  8. R v Majedi, 2009 BCCA 276 (CanLII), per Chiasson JA (3:0), at para 20
  9. R v Forester, 2009 ABPC 278 (CanLII), per Barley J – Arrest warrant related to charge of assault causing bodily harm
  10. R v Nicolisi, 1998 CanLII 2006 (ON C.A.), per Ryan JA (3:0)
  11. R v Hufsky, 1988 CanLII 72, [1988] 1 SCR 621, per Le Dain J (7:0),, at p. 637

Inventory Searches

When a vehicle is impounded lawfully, the officers have a duty to keep the property safe and take reasonable steps to do so. This will require entering the vehicle for itemizing the property of apparent value. [1]

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

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

  1. R v Nicolosi, 1998 CanLII 2006 (ONCA), per Ryan JA (3:0), at para 30
  2. R v Nolet, [2010] 1 SCR 851, 2010 SCC 24 (CanLII), per Binnie J, at para 53
  3. Nicolosi, supra
    R v Strilec, 2010 BCCA 198 (CanLII), per Ryan JA
  4. R v Wint, 2009 ONCA 52 (CanLII), per curiam (3:0)

Passengers of Vehicles

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

  1. R v Belnavis, [1997] 3 SCR 341, 1997 CanLII 320 (SCC), per Cory J and Sopinka J (7:2)
  2. R v Dreyer, 2008 BCCA 89 (CanLII), per Donald JA (3:0)

Trunks and Bags

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

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


  1. R v Pearson, 2017 ONCA 389 (CanLII), per Pardu JA leave ref'd [2017] SCCA No 465, at paras 23 to 26
  2. R v Majedi, 2009 BCCA 276 (CanLII), per Chiasson JA (3:0) -- incident to arrest

Computers, Cell Phones and Digital Storage

See also Reasonable_Expectation_of_Privacy#Computers_and_Electronic_Devices

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

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

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

Truly Incidental

The requirement that the purpose be "truly incidental" asks for 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.[3]

Timing of Search

Searches should be done "promptly upon making an arrest".[4]

Discovery of Evidence

The "valid reasons" relating to the discovery of evidence should "not routinely permitted simply for the purpose of discovering additional evidence".[5] It must serve an "immediate investigative purpose".[6] 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." [7]

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.[8]

  1. R v Fearon, 2014 SCC 77 (CanLII), per Cromwell J (4:3), at para 83
  2. Fearon, ibid. ("a search of a cell phone incident to arrest will generally not be justified in relation to minor offences")
  3. Fearon, ibid., at para 76
  4. Fearon, ibid., at para 16
  5. Fearon, ibid., at para 80
  6. Fearon, ibid., at para 80
  7. Fearon, ibid., at para 80
  8. R v Balendra, 2019 ONCA 68 (CanLII), per Harvison Young JA, at para 52

Examples

Storage Devices

A search memory stick without warrant upon arrest for credit card fraud has been found to violate s. 8.[1]

  1. R v Tuduce, 2011 ONSC 2749 (CanLII), per Taylor J

Seizure Incident to Arrest

See Also

Warrantless Search of Abandoned Property

Principles

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

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

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

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

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

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

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

Examples

Deleted Files on a Computer

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

Garbage

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

Throwing Away a Backpack

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

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

Case Digests

See Also

Plain View Search and Seizure

General Principles

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

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

For example, police may enter into a house on the basis of preserving property and the public peace, and if on entering they discover stolen property in the household, it may be considered evidence under the plain view doctrine. [4] Without a lawful search or lawful entrance, there can be no basis for the doctrine.[5]

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

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

Plain View Doctrine

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

  1. the police officer must lawfully make an initial intrusion or otherwise properly be "lawfully positioned" where he can view a particular area;
  2. the officer must discover incriminating evidence "inadvertently", which is to say, he may not know in advance the location of certain evidence and intend to seize it, relying on the plain view doctrine only as a pretext;
  3. it must be "immediately apparent" to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. These requirements having been met, when police officers lawfully engaged in an activity in a particular area perceive a suspicious object, they may seize it immediately:

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".[2]

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".[3]

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."[4]

The requirement of "immediately apparent" means that the office has "probable cause to associate the discovered property with criminal activity."[5]

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.[6]

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.[7]

Exploratory vs Seizure Power

The doctrine is not an exploratory search power, but rather is a seizure power.[8]

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.[9] However, the "open fields" doctrine does not encompass all open air private properties.[10]

It does not stretch so far as to include a bag found in a locker at a public bus station.[11]

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.[12]

Police returning a stolen safe cannot be said to inadvertently discover documents found within that were immediately apparent to relate to tax fraud.[13]

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.[14]

The doctrine cannot be used to avoid the requirement of reasonable and probable grounds to search or seize evidence.[15]

  1. R v Ruiz, 1991 CanLII 2410 (NB C.A.), (1991), 10 C.R. (4th) 34 (N.B.C.A.), per Hoyt JA (2:1)
    R v Belliveau and Losier, 1986 CanLII 88 (NB C.A.), (1986), 75 N.B.R.(2d) 18, per Stratton CJ
    R v Jones, 2011 ONCA 632 (CanLII), per Blair JA (3:0), at para 54 - describes 4 requirements
    R v Spindloe, 2001 SKCA 58 (CanLII), (2001), 154 CCC (3d) 8 (SKCA), per Jackson JA and Cameron JA, at paras 29 to 37
    R v Fawthrop, 2002 CanLII 45004 (ON CA), (2002), 166 CCC (3d) 97 (O.C.A.), per Borins JA (2:1), at paras 28 to 34
  2. R v Asp, 2008 BCSC 794 (CanLII)}}, per Arnold-Bailey J, aff’d on other grounds [http://canlii.ca/t/fnnmk 2011 BCCA 433 (CanLII), per Frankel JA
  3. R v Gill, 2019 BCCA 260 (CanLII), per Griffin JA, at para 38
    R v Askov (1987), 60 C.R. (3d) 261 at 270 (Ont. Dist. Ct.)(*no CanLII links)
    R v Nielsen (1988), 1988 CanLII 213 (SK CA), 66 Sask. R. 293 (C.A.), per Bayda CJ
    R v Buhay, 2003 SCC 30 (CanLII), per Arbour J, at para 37
  4. Gill, supra, at para 52
  5. Gill, supra, at para 54
  6. R v Makhmudov, 2007 ABCA 248 (CanLII), per curiam (3:0), at para 19
  7. Buhay, supra, per Arbour J, at para 37
  8. R v Smith (1996), 126 CCC (3d) 62 (Alta. C.A.), 1998 ABCA 418 (CanLII), per Conrad JA
    R v Fawthrop, (2002), 2002 CanLII 45004 (ON CA), 166 CCC (3d) 97 (Ont. C.A.), per Borins JA (2:1), at para 30
    R v Spindloe, (2001), 2001 SKCA 58 (CanLII), 154 CCC (3d) 8 (Sask. C.A.), per Jackson JA
  9. R v Boersma, 1994 CanLII 99 (SCC), per Iacobucci J (5:0)
    R v Patriquen, 1994 CanLII 3963, (1994), 36 C.R. (4th) 363 (NSCA), per Roscoe JA (2:1); appeal dismissed on other grounds, 1995 CanLII 77, [1995] 4 SCR 42, per Lamer CJ (7:0)
  10. R v Kelly, 1999 CanLII 13120 (NB C.A.), per Drapeau JA (3:0)
  11. R v Buhay, 2003 SCC 30 (CanLII), per Arbour J (9:0)
  12. R v Stevens, 2011 ONCA 504 (CanLII), per Armstrong JA (3:0)
  13. R v Law, [2002] 1 SCR 227, 2002 SCC 10 (CanLII), per Bastarache J (9:0)
  14. Smith, ibid., at paras 19 to 25
  15. Law, supra, at para 27

Officer Trespassing and Perimeter Searches

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

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

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

  1. R v Hok, 2005 BCCA 132 (CanLII), per Southin JA (3:0)
  2. R v Côté, 2011 SCC 46 (CanLII), [2011] 3 SCR 215, per Cromwell J (8:1), at paras 22, 26
    R v Azzolini, 1995 ABCA 119 (CanLII), per Stratton JA (3:0), at para 2
  3. e.g. R v Gendron and Greffard, 2004 BCPC 446 (CanLII), per Sperry J, at para 19
  4. R v Hyde, 2010 ABPC 30 (CanLII), per Barley J, at para 13
  5. Hyde, ibid., at para 13

Technological Detection

FLIR

The use of thermal imaging known as Forward Looking Infared Radar (FLIR) is not a form of search. The heat radiating from the house provides limited information about what is going on inside and virtually no information about the person core biographical information. The emanations exist on the outside of the house and so are exposed to the public.[1]

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

Sniffer Dogs

See also: Reasonable Suspicion

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

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

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

X-Ray Machines

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

  1. R v Fry, 1999 CanLII 18945 (NL CA), per Green JA (2:1)

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.[1]

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

Statutory Seizure on Plain View

See also: Warrantless Seizure Under Section 489

Warrantless Search in Exigent Circumstances

General Principles

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

The Courts have long recognized that the protections of s. 8 are "circumscribed by the existence of the potential for serious and immediate harm." Exigent circumstances "inform the reasonableness of the search...and may justify the absence of prior judicial authorization".[2]

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

Where warrant not necessary

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


Note up: 487.11

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

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

United States Context

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

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

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.[1]

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

Protect Life and Public Safety

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

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

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

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

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

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

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

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

911 Calls

This right to protect life is "engaged whenever it can be inferred that the 911 caller is or may be in some distress, including cases where the call is disconnected before the nature of the emergency can be determined." [9]

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

Serious Criminality

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

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

Entry of Dwellings and Other Buildings

Weapons Offences

See also: Seizure of Firearms

Drug Offences

See also: CDSA Warrants

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

Information for search warrant11 (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that
(a) a controlled substance or precursor in respect of which this Act has been contravened,
(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,
(c) offence-related property, or
(d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 [possession of stolen property] or 462.31 [money laundering] of the Criminal Code

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.
...

Search of person and seizure

(5) Where a peace officer who executes a warrant issued under subsection (1) has reasonable grounds to believe that any person found in the place set out in the warrant has on their person any controlled substance, precursor, property or thing set out in the warrant, the peace officer may search the person for the controlled substance, precursor, property or thing and seize it.

Seizure of things not specified

(6) A peace officer who executes a warrant issued under subsection (1) may seize, in addition to the things mentioned in the warrant,

(a) any controlled substance or precursor in respect of which the peace officer believes on reasonable grounds that this Act has been contravened;
(b) any thing that the peace officer believes on reasonable grounds to contain or conceal a controlled substance or precursor referred to in paragraph (a);
(c) any thing that the peace officer believes on reasonable grounds is offence-related property; or
(d) any thing that the peace officer believes on reasonable grounds will afford evidence in respect of an offence under this Act.
Where warrant not necessary

(7) A peace officer may exercise any of the powers described in subsection (1) , (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.

Seizure of additional things

(8) A peace officer who executes a warrant issued under subsection (1) or exercises powers under subsection (5) or (7) may seize, in addition to the things mentioned in the warrant and in subsection (6) , any thing that the peace officer believes on reasonable grounds has been obtained by or used in the commission of an offence or that will afford evidence in respect of an offence.
1996, c. 19, s. 11; 2005, c. 44, s. 13.
[annotation(s) added]

CDSA


Note up: 11(1), (5), (6), (7), and (8)

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

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

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

Wiretap

See Emergency Wiretaps

See Also

Warrantless Entry into Dwellings in Exigent Circumstances

General Principles

See also: Warrantless Search in Exigent Circumstances

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

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

Statutory Exception

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

Authority to enter dwelling without warrant

529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 [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


Note up: 529.3(1) and (2)

Purpose of s. 529.3

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

Factors

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

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

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

Exigent circumstances are "generally found to exist where the police have reasonable grounds to be concerned that prior announcement would: (i) expose those executing the warrant to harm and/or (ii) result in loss or destruction of evidence and/or (iii) expose the occupants to harm."[7]

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

Hot Pursuit

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

Exterior of Property

Searches of 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.[11]

  1. R v Silveira, 1995 CanLII 89 (SCC) , [1995] 2 SCR 297, per Cory J and L'Heureux‑Dubé J (6:1), at para 49
  2. R v Kenny (1992) 52 OAC 70(*no CanLII links)
  3. R v Knelsen, 2012 MBQB 242 (CanLII), per Spivak J
  4. R v Jamieson, 2002 BCCA 411 (CanLII), per Saunders JA (3:0), at para 24
  5. R v Godoy, 1999 CanLII 709 (SCC) , [1999] 1 SCR 311, per Lamer CJ (9:0)
  6. R v Wilhelm, 2014 2014 ONSC 1637 (CanLII), per Hill J, at para 106
  7. R v DeWolfe, 2007 NSCA 79 (CanLII) , (2007), 222 CCC (3d) 491, per Bateman JA (3:0)
    R v Knelsen, 2012 MBQB 242 (CanLII), per Spivak J (Exigent circumstances "include circumstances in which the police officer has reasonable grounds to suspect that entry is necessary to prevent imminent bodily harm or death to any person.")
  8. R v Depace, 2014 ONCA 519 (CanLII), per curiam (3:0)
  9. Depace, ibid.
  10. R v Feeney, 1997 CanLII 342 (SCC) , [1997] 2 SCR 13, per Sopinka J (5:4)
  11. R v Kokesch, 1990 CanLII 55 (SCC) , [1990] 3 SCR 3, per Sopinka J (4:3)

911 Phone Calls

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

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

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

Where police respond to a dropped 911 call they can enter the home if they have reasonable grounds to believe an offence has been committed. This even where no evidence of an ongoing crime exists.[5]

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

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

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

Cancelled Calls

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

  1. R v Godoy, 1999 CanLII 709 (SCC) , [1999] 1 SCR 311, per Lamer CJ (9:0), at paras 16, 19, 22
  2. Godoy, ibid., at paras 22, 23, 28
  3. R v Wilhelm, 2014 ONCA 1637 (*no CanLII links) , at para 106
    Godoy, supra, at paras 19, 21, 23, 28
  4. eg. see R v Jones, 2013 BCCA 345 (CanLII), per Neilson JA (3:0), at para 17
    Godoy, supra, at paras 16, 19 - dropped call
  5. Godoy, supra
    R v Larson, 2011 BCCA 454 (CanLII), per Groberman JA (2:1), at paras 19 to 26
  6. Godoy, supra, at para 22
    R v Nicholls, 1999 CanLII 2750 (ON CA), per Finlayson JA (3:0), at para 12
  7. Godoy, supra, at para 22
    Nicholls, supra, at para 12
  8. Godoy, supra, at paras 22, 23, 28
  9. Godoy, supra, at para 22
    Jones, supra, at para 42
  10. R v Timmons, 2011 NSCA 39 (CanLII), per Oland JA (3:0)

Safety

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

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

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

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

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

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

  1. R v Golub (1997), 117 CCC (3d) 193 (Ont. C.A.), 1997 CanLII 6316 (ON CA), per Doherty JA -- applying Feeney
    R v Farrah, 2011 MBCA 49 (CanLII), per Chartier JA
    R v Stenning, 1970 CanLII 12 (SCC) , [1970 SCR 631] {{{4}}}, per Martland J (9:0) - applying the Waterfield test
    see also s. 117.02
  2. R v Davidson, 2017 ONCA 257 (CanLII), per Laskin JA, at para 21
  3. R v Jamieson, 2002 BCCA 411 (CanLII), per Saunders JA
  4. R v Sanderson, 2003 CanLII 20263 (ON CA) , 174 CCC (3d) 289 (Ont. C.A.), per MacPherson JA
  5. R v Tunbridge, 1971 CanLII 1194 (BC CA) (1971), 3 CCC (2d) 303 (BCCA), per McFarlane JA
  6. Davidson, supra - an autistic child found in streets, peace officer enters the house to inspect that house is safe for child

Hot Pursuit Exception

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

A "hot pursuit" requires a "fresh pursuit" that is a "continuous pursuit conducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction."[2]

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

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

However, the police officer does not have to have personal knowledge to form the grounds. An officer continuing the pursuit from another officer can be sufficient.[5]

This exception is considered "narrow" and presumes the police are "literally at the heels of a suspect at the moment the suspect enters a dwelling-house"[6]

  1. R v Macooh, 1993 CanLII 107 (SCC) , [1993] 2 SCR 802, per Lamer CJ (7:0), at para 13
  2. Macooh, ibid., at para 24
    see also R v Hope, 2007 NSCA 103 (CanLII) , [2007] NSJ No. 433 (C.A.), per Fichaud JA (3:0), at para 30
    R v Clarke, 2005 CanLII 15452 (ON CA) , [2005] O.J. No. 1825 (C.A.), per Sharpe JA (3:0), at para 29
  3. R v Puyenbroeck, 2007 ONCA 824 (CanLII), per Feldman JA (3:0), at para 32
  4. see Van Puyenbroek, ibid., at para 21
  5. see also R v Haglof, 2000 BCCA 604 (CanLII) , 149 CCC (3d) 248, per Cumming JA (3:0) and Van Puyenbroek, supra
  6. Van Puyenbroek, supra

Securing Evidence

See also: Warrantless Search in Exigent Circumstances

Entry into Place to Execute an Arrest Warrant

General Principles

See also: Search Incident to Arrest#Residences

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

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

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

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

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

Implied Invitation to Knock

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

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

"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.[4]

  1. R v Evans, 1996 CanLII 248 (SC)
    R v Parr, 2016 BCCA 99 (CanLII), per Fitch JA, at para 2
  2. Parr, ibid., at para 2
  3. R v Sulyk, 1999 CanLII 13919 (SKPC), per Whelan J, at para 4
    R v Meier, 2009 SKPC 30 (CanLII), per Morgan J, at para 23
  4. e.g. R v Tran, 2013 ABQB 188, per Yamauchi J

Requirements

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

Section 529 states:

Including authorization to enter in warrant of arrest

529 (1) A warrant to arrest or apprehend a person issued by a judge or justice under this or any other Act of Parliament may authorize a peace officer, subject to subsection (2) [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


Note up: 529(1) and (2)

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


Note up: 529.1

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


Note up: 529.2

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


Note up: 529.3(1) and (2)

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.[2]

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

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

Executing Warrant

Omitting announcement before entry

529.4 (1) A judge or justice who authorizes a peace officer to enter a dwelling-house under section 529 [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 ofs evidence relating to the commission of an indictable offence.

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

CCC


Note up: 529.4(1), (2) and (3)

Telewarrant

See also: Telewarrants
Telewarrant

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

CCC


Note up: 529.5

See Also

Warrant Searches

Introduction

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

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

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

Source of Authority

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

Presumptions

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

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

Types of Warrants

The Criminal Code provides for several types of search warrants:

  • Impaired Driving Blood Samples (s.256)
  • Proceeds of Crime (s. 462.32)
  • DNA Sample ( s. 487.05)
  • Tracking (s.492.1)
  • Number recordings (s. 492.2)
  • Telephone records ( s. 492.2(2))
  • Bodily impressions (s. 487.091)
  • Drug offences (s. 11 CDSA)
  • Explosives Warrant (492)
  • Entry for Arrest (529, 529.1)
  • Production Order (.s 487.011-013)

There are other search and seizure powers found under a variety of other federal Acts that are not directly criminal in nature. Most notable include:

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

Purpose of a Warrant

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

The purpose of a search warrant is to allow investigators to "locate, examine and preserve all the evidence relevant to events which may have given rise to criminal liability."[2]

A search warrant can be used not only for collecting evidence supporting a criminal charge but also as an investigative tool for alleged criminal activity.[3]

The items sought need not necessarily afford evidence of the actual commission of the offence under investigation. Rather it "must be something either taken by itself or in relation to other things, that could be reasonably believed to be evidence of the commission of the crime." [4]

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

Procedure for Obtaining a Warrant

An application for a search warrant consists of a request under the enabling provision along with evidence, usually in written form, supporting the application. This evidence usually takes the form of an "Information to Obtain" (ITO) with a draft warrant. Both are then presented to a justice of the peace or judge. An ITO consists of a statement under oath or an affidavit of an informant detailing the facts known (both first hand or second hand) that would provide a basis to issue a warrant.[1]

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

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

Signatures

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

Notice

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

Forms

a judicial authorization under section 47 requires a Form 5.[8]

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".[9]

The consequence of a Branton error include a complete invalidation of the warrant.[10] Alternatively, the warrant may be rectified through the principle of severance.[11]

  1. R v Debot, 1986 CanLII 113 (ON CA), (1986) 30 CCC 207 (Ont.CA), per Martin JA
    R v Richard, 1996 CanLII 5594 (NS CA), (1996) 150 NSR 232 (NSCA), per Freeman JA
  2. R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per Lebel J, at para 46
  3. see Hunter v Southam, supra
  4. R v Gray, 1993 CanLII 3369 (MB CA), per Scott CJ
  5. Gray, ibid.
  6. R v Ho, 2012 ABCA 348 (CanLII), per curiam
  7. R v Vice Media, 2018 SCC 53 (CanLII), per Moldaver J
  8. Criminal Code Forms
  9. R v Kramshoj, 2017 ONSC 2951 (CanLII), per Healey J
  10. e.g. 2017 ONSC 2147
  11. R v Nguyen, 2017 ONCA 1341 (CanLII)(*no CanLII links) , per Fairburn J

Rejecting Warrants

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.[1]

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.[2]

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.[3]

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.[4]

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.[5]

  1. R v Buchanan, 2020 ONCA 245 (CanLII), at para 41 ("The denial of a search warrant does not act as a legal declaration that the police are prohibited from using the grounds contained within the Information to Obtain the warrant to furnish grounds for other purposes. It is important to distinguish between the role of a justice in determining whether to issue a search warrant and the role of the police in determining whether they have sufficient grounds to arrest. These are two fundamentally different acts.")
  2. R v Truong, 2012 ABQB 182 (CanLII), per Macklin J
  3. R v Krist, 1998 CanLII 6105 (BC CA), per McEachern CJ, at para 8 ("In my view, the justice of the peace was entitled, having an application before him, to indicate to the police that he thought that the process was wrong and should be brought under the other section; nor do I think there was anything wrong with the justice of the peace advising the officers what further information, if any, he needed in order to issue a warrant; so I would not give effect to that submission.")
    R v Gray, 1993 CanLII 3369 (MB CA), per Scott CJ ("It is of course open to a magistrate hearing an application for a warrant and considering the evidence presented to identify deficiencies and to reconsider the application when these deficiencies have been remedied by the police")
  4. R v Duchcherer and R v Oakes, 2006 BCCA 171 (CanLII), per Thackray JA, at para 33
  5. Duchcherer, ibid.

Different Territorial Divisions

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

Telewarrants

See also: Telewarrants

Exceptions to Requirement for Prior Judicial Authorizations

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

Topics

Information to Obtain a Search Warrant

General Principles

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

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

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

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

  1. sworn evidence sufficient to establish reasonable grounds for believing the offence had been committed, that the things to be searched for will afford evidence and that the things in question will be found at a specked place[7]
  2. that it as a whole must be considered and peace officers, who generally will prepare these documents without legal assistance, should not be held to the “specificity and legal precision expected of pleadings at the trial stage."[8]
  3. the affiant’s reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant’s belief[9]

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

  1. R v Knight, 2008 NLCA 67 (CanLII), per Welsh JA leave refused, at para 32 ("It is the role of the police submitting the Affidavit to provide the factual foundation for issuance of the warrant")
  2. R v Fan, 2013 BCSC 445 (CanLII), per Brown J, at para 15 citing R v Araujo, 2000 SCC 65 (CanLII), (2000), 149 CCC (3d) 449 (SCC), per LeBel J (9:0), at paras 46 to 49
  3. See Judicial Authorization Standard of Review
  4. R v Worrall, 1964 CanLII 161 (ON CA), per Porter CJ
  5. Fan, supra, at para 14 ("The process of prior authorization ... provides an opportunity to assess and weigh the conflicting interests of the state and the individual in order to ensure that an individual’s right to privacy is breached only when the interests of the state are demonstrably superior.")
  6. R v Morris, 1998 CanLII 1344 (NS CA) , 173 N.S.R. (2d) 1 (C.A.), per Cromwell JA (3:0), at para 31br>
  7. Sanchez, supra, at p. 365
  8. Sanchez, supra, at p. 364
  9. R v Yorke, 1992 CanLII 2521 (NS CA) , (1992), 115 N.S.R. (2d) 426 (C.A.), per Roscoe JA (3:0) affd 1993 CanLII 83 (SCC), [1993] 3 SCR 647, per La Forest J (4:1)
  10. R v TK, 2013 MBQB 114 (CanLII), per Menzies J, at para 11
    Worrall, supra

Basic Elements

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

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

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

The document should be reliable, balanced and material. It should also be clear, concise, legally and factually sufficient, but it need not include “every minute detail of the police investigation”. [2]

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

Facial Validity

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

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

Drafting Quality

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

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

The use of boilerplate or conclusory language may render the ITO insufficient.[11]

Inquiry by Justice

A justice has no obligation to make inquiry of the affiant into the grounds of his belief.[12]

Organization and Length

An issuing judge or justice is entitled to reject an ITO on the basis of it being too lengthy and disorganized.[13] 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 [14]

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".[15]

  1. R v Chhan, 1996 CanLII 7025 (SK QB), per Laing J - lists 5 requirements
    R v Turcotte, 1987 CanLII 984(SK CA), per Vancise JA, at p. 14
    R v Adams, 2004 CanLII 12093 (NL PC), per Gorman J, at para 24
  2. CBC v A-G for New Brunswick, 1991 CanLII 50 (SCC), (1991), 67 CCC (3d) 544 (SCC), per Cory J (6:1), at p. 562
    R v Araujo, 2000 SCC 65 (CanLII), (2000), 149 CCC (3d) 449 (SCC), per LeBel J (9:0), at p. 470
    R v Ling, 2009 BCCA 70 (CanLII), (2009), 241 CCC (3d) 409 (BCCA), per Bauman JA, at para 43 (leave to appeal refused, [2009] SCCA No 165)
  3. R v Dombrowski, 1985 CanLII 182 (SK CA), (1985) 18 CCC 164, per curiam
  4. R v Stockton Financial Services Co. (1990) 60 CCC 527 (Man CA), 1990 CanLII 10950 (MB CA), per Huband JA and Lyon JA
    R v Harris, 1987 CanLII 181 (ON CA), (1987) 35 CCC 1 (Ont.CA), per Martin JA
  5. R v Pilkington (No. 1), 2013 MBQB 79 (CanLII), per Mainella J, at para 54
  6. see 487.1
    related R v Steeves, 2002 BCSC 551 (CanLII), per Chamberlist J, at paras 57 to 62
  7. R v Dixon, 2012 ONSC 181 (CanLII), per Taliano J
  8. R v Sanchez, 1994 CanLII 5271 (ON SC), [1994] OJ No 2260 (S.C.J.), per Hill J, at para 20
  9. Re Lubell and the Queen (1973), 11 CCC (2d) 188 (Ont. H.C.), 1973 CanLII 1488 (ON SC), per Zuber J, at p. 190
    R v Durling, 2006 NSCA 124 (CanLII), per MacDonald CJ, at para 19
    Sanchez, supra, at p. 364
    Re Chapman and the Queen (1983), 6 CCC (3d) 296 (Ont. H.C.), 1983 CanLII 3587 (ON SC), per Reid J, at p. 297
    Re Times Square Book Store and R. (1985), 1985 CanLII 170 (ON CA), 17 C.R.R. 180, 21 CCC (3d) 503, per Cory JA ("However, the warrant (and I infer from the heading immediately preceding this quote that he is also speaking of the information in support) need not be drafted with legal precision as it is an instrument for the investigation of crime. A reasonable latitude must be granted when considering its wording.")
  10. R v Whitaker, 2008 BCCA 174 (CanLII), per Frankel JA (3:0), at paras 41 to 42
  11. e.g. R v Harris, 1987 CanLII 181 (ON CA) , 35 C.C.C. (3d) 1 (ONCA), per Martin JATemplate:Atsp
    R v Church of Scientology and the Queen (No.6), 1987 CanLII 122 (ON CA), 31 CCC (3d) 449 (ONCA), per curiam, at p. 500
  12. R v Donaldson, 1990 CanLII 630 (BC CA), per Hinkson JA (3:0)
  13. Re Criminal Code, [1997] OJ No 4393 (Gen. Div.)(*no CanLII links) , at paras 9 to 11
  14. R v Rafferty, 2012 ONSC 703 (CanLII), per Heeney J , at para 34
  15. R v Debot, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140, per Wilson J, at p. 1166

Inferences

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

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

  1. R v Vu, 2013 SCC 60 (CanLII), per Cromwell J (9:0), at paras 13 to 16
  2. See R v Durling, 2006 NSCA 124 (CanLII), per MacDonald CJ, at paras 27 to 28
    Vu, supra, at para 16

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.[1] This obligation arises due to the ex parte nature of the application.[2] There is a hightened risk of the court's powers being misused.[3]

This principle applies to all warrants, including wiretaps.[4]

The police must give full and frank disclosure so that the authorizing justice can decide in a "neutral and impartial manner".[5]

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.[6]

A flagrant, deliberate, or wilfully blind failure to make full and complete disclosure can be fatal to the warrant.[7]

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.[8] The ITO does not need to state every step a police officer takes in obtaining information.[9]

This does not require disclosing every fact that might possibly be relevant.[10] It should only be those that are "material facts".[11]

It is also generally not necessary to include in the ITO the absence of any other potentially relevant observations.[12]

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".[13]

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.[14]

Lack of good faith in the contents of the ITO may invalidate it.[15]

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.[16]

The ITO must be sure to disclose any "prior association or personal connection" between the informer and the target of the search.[17]

Inferences

The justice is entitled to draw reasonable inference from the facts set out in the ITO.[18] It is not necessary that the affiant spell out all inferences they are relying upon.[19]

Experience of Officer

The officer's experience is relevant to the investigative narrative.[20] Training and experience permits an officer to draw inferences and make deductions not otherwise available to a lay person.[21]

  1. R v Moore, 1993 CanLII 17 (BC CA), (1993), 81 CCC (3d) 161 (BCCA), per Toy JA aff'd on appeal
    R v Brown, 2008 ABQB 663 (CanLII), per Germain J, at paras 50, 64
    R v Kensington Income Tax, [1917] 1 K.B. 486 (C.A.)
    Re Church of Scientology and The Queen (No. 6), 1987 CanLII 122 (ON CA), per curiam
    United States of America v Friedland, 1996 CanLII 8213 (ON SC), [1996] OJ No 4399 (Gen.Div.), per Sharpe J, at paras 26 to 29
    R v Araujo, 2000 SCC 65 (CanLII), per Fish J (9:0), at para 46
    R v Nguyen, 2011 ONCA 465 (CanLII), per Blair JA (3:0), at para 48
  2. Araujo, supra, at paras 46 to 47
  3. R v Liew, 2012 ONSC 1826 (CanLII), per Boswell J, at paras 158 to 159
  4. R v Ling, 2009 BCCA 70 (CanLII), per Bauman JA, at paras 31 to 32
  5. R v Ling, 2009 BCCA 70 (CanLII), per Bauman JA, at para 40
  6. R v Rocha, 2012 ONCA 707 (CanLII), per Rosenberg JA
    R v White, 2017 ONSC 5647 (CanLII), per De Sa J, at para 33
  7. R v Duncan (W.), 2004 MBCA 64 (CanLII), per Monnin JA (2:1), at para 32
  8. R v Montgomery, 2016 BCCA 379 (CanLII), per Frankel JA, at para 98
    Evans v Umbrella Capital LLC, 2004 BCCA 149 (CanLII), per Donald JA, at para 33 ("A material fact is one that may or might affect the outcome of an application:... . It is for the court to decide what is a material fact..")
  9. R v Sanchez, 1994 CanLII 5271 (ON SC), (1994), 93 CCC (3d) 357 (Ont. Ct. Gen. Div.), per Hill J, at para 20
  10. R v Chambers, 1983 CanLII 245 (BC CA), (1983), 9 CCC (3d) 132 (BCCA), per Craig JA, at p. 143 aff'd 1986 CanLII 22 (SCC), (1986), 26 CCC (3d) 353 (SCC), per McIntyre J (5:2)
    R v Concepcion, 1994 CanLII 1746 (BC CA), (1994), 48 BCAC 44 (B.C.C.A), per Finch JA (3:0), at para 36 (it does not impose a blanket obligation “to disclose every fact which might possibly be relevant”)
    Montgomery, supra, at para 97
  11. Araujo, supra, at para 46
  12. e.g. R v Nguyen, 2011 ONCA 465 (CanLII), per Blair JA (3:0) - CA overturns a decision to invalidate warrant for failing to mention lack of suspicious activity in front of grow-up house
  13. Brown, supra, at para 64
    R v Middleton, 2000 BCCA 660 (CanLII), per Finch JA (3:0), at paras 18, 19
  14. R v Ebanks, 2009 ONCA 851 (CanLII), 249 C.C.C. (3d) 29, per MacPherson JA (3:0), at para 43
  15. e.g. Ling, supra
  16. Morelli, supra, at para 79
  17. R v Morley, 2013 BCSC 463 (CanLII), per Arnold-Bailey J, at para 50
  18. R v Schiers, 2003 NSCA 138 (CanLII), per Fichaud JA, at para 15
    R v Durling, 2006 NSCA 124 (CanLII), per MacDonald CJ, at paras 20, 27
    R v Jackson, 1983 CanLII 244 (BCCA), per Taggart JA and Seaton JA, at p. 131
    R v Sanchez, 1994 CanLII 5271 (ONSC), per Hill J, at pp. 365, 370
    R v Church of Scientology, 1987 CanLII 122 (ONCA), per curiam (3:0), at pp. 514 to 515
  19. Re Lubell, supra, at p. 190
  20. R v Ngo, 2011 ONSC 6676 (CanLII), per Hill J, at para 35(4)
    R v Cunsolo, 2008 CanLII 48640 (ON SC), [2008] OJ NO 3754, per Hill J
  21. R v Jacques and Mitchell, 1996 CanLII 174 (SCC), per Gonthier J, at p. 12
    R v Lawes, 2007 ONCA 10 (CanLII), per curiam, at para 4
    R v Simpson, 1993 CanLII 3379 (ONCA), per Doherty JA, at p. 501
    R v Juan, 2007 BCCA 351 (CanLII), per Thackray JA (3:0), at para 19
    R v Tran, 2007 BCCA 491 (CanLII), per Levine JA (3:0), at para 12
    R v Mouland, Mouland, 2007 SKCA 105 (CanLII), per Smith JA, at to 27 paras to 27{{{3}}}
    R v Ingle, 2007 BCCA 445 (CanLII), [2007] BCJ No 2024, per Rowles JA (3:0), at para 53
    R v Rajaratnam, 2006 ABCA 333 (CanLII), per curiam (3:0), at p. 559
    R v Grotheim, 2001 SKCA 116 (CanLII), per Cameron JA (3:0), at para 30

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.[1]

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

Description of the Location to be Searched

See also: General Warrants#Content of Warrant

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

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

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

Motor Vehicles

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

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

Residences

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

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

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

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

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

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

  1. Fontana, supra, at p. 87
  2. R v Vu, 2004 BCCA 230 (CanLII), per Frankel JA (2:1) - appealed to SCC
  3. R v Wisdom, 2012 ONCJ 54 (CanLII), per Lipson J, at para 44 ("The warrant fails to specifically authorize a search of apartment 303 which is where the applicants resided")
  4. R v Sexton, 2011 NBCA 97 (CanLII), per Bell JA (3:0), at paras 4 to 9
  5. R v Parker, 2006 NBPC 38 (CanLII), per Ferguson J - address on warrant varied from address in ITO. ITO address was correct. Warrant found valid.
    R v Jacobson, 2009 ONCA 130 (CanLII), per curiam - correct address in ITO, error in warrant address. Warrant valid to search car only, lower expectation of privacy in car
  6. R v NM, 2007 CanLII 31570 (ON SC), per Hill J, at para 363

Description of Thing(s) to be Searched For

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

The justice of the peace loses jurisdiction where the description is over-broad or too vague such that it essentially allows the officer to conduct a "carte blanche" search for any evidence within the premises.[2]

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

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

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

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

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

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

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

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

Description of Offence(s) Being Investigated

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

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

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

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

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

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

  1. R v Anderson and Slater, 2012 BCPC 496 (CanLII), per Jardine J, at para 37
    R v Branton, 2001 CanLII 8535 (ON CA), per Weiler JA (3:0), at paras 35 to 37 - simply stating the act without mention of the specific offence is not enough
  2. Anderson and Slater, supra, at para 37
    R v Times Square Book Store, 1985 CanLII 170 (ON CA), (1985), 21 CCC (3d) 503, per Cory JA, at p. 512
  3. R v Royal American Shows Incorporated, 1975 CanLII 260 (AB QB), per Cavanagh J
  4. R v Kent, 1993 CanLII 3231 (NS CA), per Hallett JA (3:0)
    cf. R v Lemon, [2004] OJ No 6043 (Ont. S.C.)(*no CanLII links)
  5. Capostinsky v Olsen, 1981 CanLII 643 (BC SC), per Berger J - warrant quashed due to a conclusory statement by officer that BAC level was over 0.08 R v Cunsolo, 2008 CanLII 51468 (ON SC), per Hill J, at para 73 - ITO must describe how fraud was committed
  6. R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, per Fish J (4:3), at paras 13 to 38
  7. R v Sanchez, 1994 CanLII 5271 (ON SC), per Hill J ("in the instance of the crime of conspiracy such identification constitutes a significant investigative challenge ...The offence is not infrequently investigated, for some dura­tion, as committed by "a person or persons at present unknown"."

Connecting the Thing to the Location

The approving justice must be satisfied that there is a connection between the grounds for belief of the offence and that evidence of or information related to the offence will be found on the premises to be searched.[1]

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

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

Rooming House

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

  1. R v Turcotte, 1987 CanLII 984 (SK CA) , (1987), 39 CCC (3d) 193 (Sask.C.A), per Vancise JA
  2. e.g. R v Davis, 2012 ABPC 125 (CanLII), per Lamoureux J, at para 26
    e.g. R v Morse, 2006 CanLII 63690 (ON SC), per Nordheimer J
    Turcotte, supra
  3. R v Kelly, 2010 NBCA 89 (CanLII), per Drapeau CJ, at para 39
  4. R v Campbell, 2011 SCC 32 (CanLII) , [2011] 2 SCR 549, per Charron J (7:0), at para 15
  5. Campbell, ibid., at para 15

Reliability of Information Within the ITO

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

  1. R v King (No. 4), 2016 CanLII 88801 (NL SCTD), per Marshall J, at para 30
    R v Nguyen, 2011 ONSC 2187 (CanLII), per O’Neill J, at para 11

Currency of Information

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

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

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

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

Child Pornography

The searching officer may draw the inference upon learning of the download of suspected child pornography that the files may remain on the computer well after download and even where efforts to delete the materials have been made.[5]

The searching officer may in some cases also rely upon their experience "of individuals who access and possess child pornography on their computers" which tells them that "often these individuals kept images for “long periods of time” and “rarely deleted collections”." Generally, dated information on the presence of child pornography can be relied upon as those who collect such materials are known to keep it for a long period of time. [6]

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

  1. R v Hosie, 1996 CanLII 450 (ON CA), per Rosenberg JA (3:0)
  2. R v Ballendine, 2011 BCCA 221 (CanLII), per Frankel JA (3:0), at para 54
  3. R v Brown, 2007 BCPC 448 (CanLII), per De Couto J , at para 65
  4. R v Carroll, 1989 CanLII 206 (NS CA), per Macdonald JA
  5. R v Ward, 2012 ONCA 660 (CanLII), per Doherty JA (3:0), at para 114 ("...extensive technical evidence to the effect that files downloaded by the appellant on the computer could be recovered by police technicians even if the appellant had made efforts to delete those files. This evidence offered some basis for an inference that the prohibited material remained on the computer long after it was downloaded and could be recovered if the police were given access to the computer")
    Brown, supra, at para 82
  6. Ward, supra, at para 115
    R v Neveu, 2005 NSPC 51 (CanLII), per Gibson J, at para 18
    R v Wonitowy, 2010 SKQB 346 (CanLII), per Dufour J, at paras 37 to 50
    Brown, supra, at para 82
  7. R v Stemberger, 2012 ONCJ 31 (CanLII), per Borenstein J, at para 99

Cross-Examination of Affiant

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

Standard for Leave to Cross-Examine

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

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

Getting Behind a "Strawman" Affiant

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

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

Credibility and Reliability of Source

See also: Confidential Informers

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

  1. R v Morris (W.R.), 1998 CanLII 1344 (NS CA), (1998), 173 N.S.R. (2d) 1 (C.A.), per Cromwell JA (3:0), at para 91
    R v Evans (E.D.), 2014 MBCA 44 (CanLII), per Mainella JA (3:0), at para 17
  2. Morris, supra, at para 91

Relying on Redacted ITOs

See also: Confidential Informers

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

  1. R v Reid, 2016 ONCA 524 (CanLII), per Watt JA (3:0), at para 19
  2. Reid, ibid., at para 19
  3. e.g. Reid

Procedure in Drafting Warrant

Crown Role in Drafting ITOs

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

Retaining Early Drafts

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

  1. R v Ebanks, 2009 ONCA 851 (CanLII), per MacPherson JA (3:0), at para 49
  2. R v Croft, 2014 ABQB 23 (CanLII), per Burrows J

See Also

Confidential Informers

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.[1]

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

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

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

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

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

Weaknesses present in one factor can be made-up for by strengths on other factors.[5]

An anonymous tip generally is not sufficient.[6] Inquiry must be made into the three Garofoli factors to determine whether it can be reasonably relied upon.[7]

The test remains the same whether considering a warrantless search or a warrant such as a wire-tap.[8]

Hearsay from the informant can be sufficient.[9]

The law must maintain a "distinction between acting on a tip from a reliable source and acting on a tip from an unproven source".[10] Where reliability is unknown, "a relatively thorough investigation is essential" in order to provide corroboration.[11]

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.[12]

Detail

The purpose of considering the level of detail is to "ensure that it is based on more than mere rumour or gossip"[13]

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"[14]

Corroboration

Confirmation of the criminal aspects of a tip is important in cases such as where the tip is anonymous.[15]

Where there is no corroboration or confirmation, the reliability of the source is the essential issue.[16]

  1. R v Graham, 2013 BCCA 75 (CanLII), per Neilson JA, at para 15
    R v Jir, 2010 BCCA 497 (CanLII), per Frankel JA, at para 8
  2. R v Warford (2001), 161 CCC 309, 2001 NFCA 64 (CanLII), per Welsh JA
    R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421, per Sopinka J, at para 68
  3. R v Debot, [1989] S.C.J. No. 118 1989 CanLII 13 (SCC), per Wilson J, at p. 218-219
    R v Rocha, 2012 ONCA 707, per Rosenberg JA
  4. Debot, supra
    Garofoli, supra, at paras 68, 1fss582
    R v Araujo, [2000] 2 SCR 992, 2000 SCC 65 (CanLII), at para 54
  5. Rocha, supra, at para 16
  6. R v Bennett (1996) 108 CCC 175, 1996 CanLII 6344 (QC CA), per Proulx JA
  7. Debot, supra, at p. 1168
    R v Plant, 1993 CanLII 70 (SCC), per Sopinka J, at para 35
  8. Garofoli, supra, at para 68 ("I see no difference between evidence of reliability of an informant tendered to establish reasonable and probable grounds to justify a warrantless search ... and evidence of the reliability of an informant tendered to establish similar grounds in respect of a wiretap authorization.")
  9. Garofoli, supra, at para 68
  10. R v Philpott, [2002] O.T.C. 990, 2002 CanLII 25164 (ONSC), per Quinn J, at para 161
  11. Philpott, ibid., at para 162
  12. Garofoli, supra, at para 68
  13. R v Greffe, 1990 CanLII 143 (SCC), [1990] 1 SCR 755, per Lamer J
  14. Greffe, ibid.
    see also R v Debot, 1986 CanLII 113, (1986), 30 CCC (3d) 207 (Ont. C.A.), per Martin JA, at p. 218 ("The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged. I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds")
  15. see R v Campbell, 2003 MBCA 76 (CanLII), per Scott CJ, at para 27
  16. R v Maton, 2005 BCSC 330 (CanLII), per Romilly J, at para 45
    R v Pippin, 1994 CanLII 4659 (SK CA), per Vancise JA
    R v Cheecham, 1989 CanLII 5129 (SK CA), (1989), 51 CCC (3d) 498 (Sask. C.A.), per Tallis JA
    R v Duther, 2002 NBPC 4(*no CanLII links)
    R v Duncan, 2004 MBCA 64 (CanLII), per Monnin JA

Level of Detail

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

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

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

Corroboration

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

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

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

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

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

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

Reliability and Credibility

  • Past reliability:[1]
    • Length of time known
    • Frequency of contact
    • # of times paid (before / after incident)
    • # of valid search warrants based on his information
    • Had searches resulted in 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.[2] However, offences such as perjury will likely have an impact on their credibility. [3]

Motivation

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

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

Disclosure of Handler Notes

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

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

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

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

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

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

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

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

  1. R v Robertson, 2016 BCSC 2075 (CanLII), per Watchuk J, at para 4 ("...the parties entered into the type of disclosure order which was often referred to as a “McKay Order”. Pursuant to that order, the communications between the police handlers and the five sources or confidential informants in the form of handler notes (“SHNs”) and debriefing reports (“SDRs”) were disclosed in a redacted form.")
  2. R v Way, 2014 NSSC 180 (CanLII), per Arnold J
  3. R v McKenzie, 2016 ONSC 242 (CanLII), per Campbell J, at para 39 ("... before [handler notes] are properly subject to disclosure by the Crown, the onus is upon the accused to first meet the burden of showing that there is a reasonable likelihood that the requested materials will assist the court in the determination of the application ")
    Way, supra{{AtsL|g6x7n|51|, 59, 63, 75, 97
  4. R v McKay, 2015 BCSC 1510 (CanLII), per MacKenzie J, at paras 80 to 81 appealed to 2016 BCCA 391 (CanLII)), per Willcock JA (3:0)
  5. R v McKay, 2016 BCCA 391 (CanLII), per Willcock JA
  6. McKay, ibid., at para 158
  7. R v Barzal, 1993 CanLII 867 (BCCA), per curiam
  8. R v Childs, 2016 ONCJ 690 (CanLII), per Campbell J, at paras 3 and 4

See Also

Social Sciences

Search Warrant Evidence

General Principles

Communications with the justice

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

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

First-hand Observations

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

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

See also Reasonable Expectation of Privacy

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

Statement by Accused

Where the ITO contains a statement from the accused, the document must also show that the accused was properly cautioned and given a right to counsel. [1]

The statement cannot be involuntary.[2]

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

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

Criminal Records

A copy of the informer's criminal record should be included in the ITO except where it may tend to reveal the identity of the informer.[1]

Where the ITO states that the informer has a criminal record when in fact the informer was merely charged, it may be sufficient to void the warrant.[2]

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

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

Hearsay

See also: Hearsay

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

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

An ITO may contain hearsay as long as it is sourced and details are given about the source so the Justice can review the source's reliability and weigh its evidentiary value. [3]

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

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

It has been recommended that where the source is the notes or reports of other officers there should be detail on how it was obtained and why it is reliable.[6] It has been considered in appropriate to paraphrase or edit the notes of the other officers in materials ways.[7]

It has been further suggested that where it is from a written statement of a witness, details of identity and their involvement should be provided.[8]

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

Debot factors are to be applied when considering hearsay.

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

Expert Evidence

See also: Expert Evidence

For expert evidence to be used in an ITO, it must contain details on the expert's qualifications and experience as well as show the methods the expert used to come to their conclusion.[1]

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

Errors in Opinion

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

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

Credibility

See Confidential Informers

Reasonable and Probable Grounds

General Principles

See also: Reasonable Suspicion

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

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

Credibility-based Standard

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

Credibility-based probability involves “a practical, non-technical, and common-sense assessment of the totality of the circumstances”.[5]

Totality of Circumstances

The "totality of the circumstances" must be considered in the assessment of grounds.[6] The purpose of emphasizing the "totality of the circumstances" is to "avoid concentrating on individual pieces of evidence".[7] Accordingly, the considerations of the evidence cannot be "piecemeal".[8]

Totality requires that the officer consider "all incriminating and exonerating information", but may disregard unreliable evidence.[9]

The officer must consider context including timing involved, events leading formation of grounds, and the dynamics at play.[10] Reasonable grounds need not be based on first hand knowledge.[11]

The factors of consideration must be "flexible". Courts should not put one factor "to the status of an essential prerequisite" to establish grounds.[12]

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".[13]

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.[14]

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.[15] It is also greater than "[m]ere suspicion, conjecture, hypothesis or ‘fishing expeditions’".[16]

Contrast with BARD and Prima Facie Standard

It does not equate with "proof beyond a reasonable doubt" or to a "prima facie case".[17] It is not "proof absolute".[18]

Reasonable grounds is a standard lower than a prima facie case and is less than a balance of probabilities.[19]

Contrast to Reasonable Suspicion

It is higher than "reasonable suspicion"[20], 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"[21]

Identical Standards

In more recent times the standard has also been called "reasonable grounds to believe"[22] , "reasonable belief"[23], "reasonable probability", and to a lesser extent "probable cause".[24] However, neither of these names have lasted.[25]

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"[26] These requirements set out the "minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure".[27]

Reliability of Information

The officer weighing evidence to be relied upon when justifying a search or arrest must be satisfied that:[28]

  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.[29]

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.[30]

  1. Hunter v Southam, 1984 CanLII 33 (SCC), per Dickson J, at p. 167 (cited to SCR)
    R v Sanchez, 1994 CanLII 5271 (ON SC) , (1994), 93 CCC (3d) 357 at 367 (Ont.Ct. Gen.Div.), per Hill J ("The appropriate standard of reasonable or credibly based probability envisions a practical, non-technical and common sense probability as to the existence of the facts and inferences asserted.")
    R v Ngo, 2011 ONSC 6676 (CanLII), per Hill J, at para 35
  2. Hunter v Southam, supra
    R v Phung, 2013 ABCA 63 (CanLII), per curiam, at para 11 ("As for what “reasonable grounds” itself means, the standard was first described in Hunter v Southam, ... as “the point where credibly-based probability replaces suspicion”. It has since been characterized in terms of “reasonable probability”: ... . This is a standard higher than a reasonable suspicion but less than a prima facie case: .... Reasonable suspicion, by contrast, exists where there is “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”:...")
    R v Hosie, 1996 CanLII 450 (ON CA) , [1996] OJ No 2175 (ONCA), per Rosenberg JA, at para 11
  3. R v Loewen, [2011] 2 W.W.R. 15, 260 CCC (3d) 296 (Alta. C. A.), 2010 ABCA 255 (CanLII), per Slatter JA (2:1), at para 18
    Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 (CanLII), per curiam, at para 114
    R v Mann, 2004 SCC 52 (CanLII) , [2004] 3 SCR 59, per Iacobucci J, at paras 34, 41
    R v Hall, 1995 CanLII 647 (ON CA) , (1995), 22 O.R. (3d) 289 (C.A.), per Osborne JA, at p. 298
    Baron v Canada, 1993 CanLII 154 (SCC), per Sopinka J
  4. Loewen, supra, at para 18
    n.b. which is also why certain cases use the term reasonable grounds rather than reasonable and probable grounds
  5. R v Ballendine, 2011 BCCA 221 (CanLII), per Frankel JA, at para 53
  6. R v Debot, 1989 CanLII 13 (SCC) , [1989] 2 SCR 1140, per Wilson J, at para 53 (" I concur with Martin J.A.'s view that the 'totality of the circumstances' must meet the standard of reasonableness. Weakness in one area may, to some extent, be compensated by strengths in the other two.")
    R v Garofoli, 1990 CanLII 52 (SCC) , [1990] 2 SCR 1421, per Sopinka J ("The reliability of the tip is to be assessed by recourse to the 'totality of the circumstances'. ")
  7. R v Slippery, 2014 SKCA 23 (CanLII), per Whitmore JA, at paras 21 to 22
    R v Skinkewski, 2012 SKCA 63 (CanLII), per Caldwell JA, at para 13 ("a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal fashion")
    R v Savage, 2011 SKCA 65 (CanLII), per Smith JA
    R v Nguyen, 2010 ABCA 146 (CanLII) , 477 A.R. 39, per curiam
  8. Skinkewski, supra, at para 13
  9. Shinkewski, supra, at para 13 ("an arresting officer must consider all incriminating and exonerating information which the circumstances reasonably permit, but may disregard information which the officer has reason to believe may be unreliable: R v Storrey;")
  10. Skinkewski, supra, at para 13
    Nguyen, supra, at para 18
  11. R v Yorke, 1992 CanLII 2521 (NS CA) , (1992), 115 N.S.R. (2d) 426 (C.A.), per Roscoe JA; aff'd 1993 CanLII 83 (SCC), [1993] 3 SCR 647, per La Forest J
  12. R v Parsley, 2016 NLCA 51 (CanLII), per Hoegg JA, at para 16
    R v Burke, 2011 NBCA 51 (CanLII), per Richard JA
  13. R v Morris, 1998 NSCA 229 (CanLII) , 134 CCC (3d) 539 (N.S.C.A.), per Cromwell JA
    R v Yorke, 1992 CanLII 2521 (NS CA) , 115 N.S.R. (2d) 426, 77 C.C.C. (3d) 529 (C.A.); affirmed 1993 CanLII 83 (SCC), [1993] 3 SCR 647, 84 CCC (3d) 286
  14. Storrey, supra, at pp. 250-1
  15. Shinkewski, supra, at para 13 ("an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities ... or a prima facie case for conviction (R v Storrey) before making the arrest; but an arresting officer must act on something more than a “reasonable suspicion” or a hunch")
    R v Herta, 2018 ONCA 927 (CanLII), per Fairburn JA, at para 20 (RPG "falls short of a balance of probabilities") R v Sadikov, 2014 ONCA 72 (CanLII) , 305 CCC (3d) 421 {{{4}}}, per Watt JA, at para 81
  16. Sanchez, supra, at para 31
  17. Ngo, supra, at para 35
    R v Jacobson, 2006 CanLII 12292 (ONCA), per Rosenberg JA
  18. Ngo, supra, at para 35
    R v Smith, 1998 ABCA 418 (CanLII), per Conrad J, at p. 77
  19. see R v Debot, 1986 CanLII 113 (ON CA) , (1986), 17 O.A.C. 141, per Martin JA, affirmed 1989 CanLII 13 (SCC), [1989] 2 SCR 1140, per Wilson J Storrey, supra, at pp. 250-1 - prima facie case not necessary Loewen, supra, at para 18
  20. Phung, supra, at para 11
  21. Phung, supra, at para 11
    R v Simpson, 1993 CanLII 3379 (ON CA) , (1993), 12 OR (3d) 182, per Doherty JA, at p. 202
    R v Jacques, 1996 CanLII 174 (SCC)] , [1996] 3 SCR 312, per Gonthier J, at para 24
    Mann, supra, at para 27
  22. Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 (CanLII), per curiam, at para 114
    Baron v Canada, supra, at paras 42 to 44 - discussion of the difference between "reasonable grounds to believe" vs "reasonable and probable grounds"
    R v Loewen, 2011 SCC 21 (CanLII) , [2011] 2 SCR 167, per McLachlin CJ, at para 5
  23. Debot (SCC), supra, at p. 213
  24. R v Law, 2002 BCCA 594 (CanLII), per Huddart JA, at paras 3, 7
  25. e.g. R v Chehil, 2013 SCC 49 (CanLII), per Karakatsanis J
  26. R v Morelli, 2010 SCC 8 (CanLII), per Fish J, at para 39
    Hunter v Southam Inc, supra, at p. 168
    See also R v Vella (1984) 14 CCC 513, 1984 CanLII 3607 (ON SC), per Henry J
    R v Harris, 1987 CanLII 181 (ON CA), per Martin JA
  27. Hunter v Southam, supra, at p. 168
  28. R v Debot, [1989] 2 SCR 1140, 1989 CanLII 13 (SCC), per Lamer J, at p. 215
  29. See Charter Applications
  30. R v Dhillon, 2016 ONCA 308 (CanLII), per Tulloch JA, at para 22
    R v Shepherd, 2009 SCC 35 (CanLII) , [2009] 2 SCR 527, 309 DLR (4th) 139, per McLachlin CJ and Charron J, at paras 18, 20 ("[w]hile there can be no doubt that the existence of reasonable and probable grounds is grounded in the 'factual findings' of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law")
    R v MacKenzie, 2013 SCC 50 (CanLII), per Moldaver J, at para 54
    R v Feeney, 1997 CanLII 342 (SCC), per Sopinka J, at paras 30, 33, 36
    R v Biccum, 2012 ABCA 80 (CanLII), per Berger JA, at para 10
    R v Nicholson, 2011 ABCA 218 (CanLII), per curiam, at para 14
    R v Mehari, 2011 ABCA 67 (CanLII), per curiam, at paras 13 to 14
    R v Loewen, 2010 ABCA 255 (CanLII), per Slatter JA (2:1), at para 6, aff'd 2011 SCC 21 (CanLII), per McLachlin CJ
    R v Harding, 2010 ABCA 180 (CanLII), per curiam, at paras 12 to 13
    R v Abdo, 2009 ABCA 340 (CanLII), per Costigan JA, at para 5
    R v Dill, 2009 ABCA 332 (CanLII), per Costigan JA, at para 4

A Context-Specific Standard

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

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

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

Fair Context

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

Search Warrants

In the context of a warrant search, there must be “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search”.[7]

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

Subjective Factors

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

Experience, Training and Knowledge of Officer

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

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

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

Operating on Agency

The searching or arresting officer may rely upon the assumption that the officer directing them has the requisite grounds.[7] </ref>

Mistaken Belief vs Reality

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

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

  1. R v Shinkewski, 2012 SKCA 63 (CanLII), per Caldwell JA, at para 13 ("an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be justifiable from an objective point of view - in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there were indeed reasonable grounds for the arrest")
  2. R v Biccum, 2012 ABCA 80 (CanLII), per curiam, at para 21
    R v Lawes, 2007 ONCA 10 (CanLII), per curiam, at para 4
    R v MacKenzie, 2011 SKCA 64 (CanLII), per Caldwell JA (3:0), at para 27, reserved (January 22, 2013) [2011] SCCA No. 359
    R v Wilson, 2012 BCCA 517 (CanLII), per MacKenzie JA, at paras 18 to 44
    R v Smith, 1998 ABCA 418 (CanLII), per Conrad JA, at para 30
    R v Sinclair, 2005 MBCA 41 (CanLII), per Freedman JA, at para 14
    R v Messina, 2013 BCCA 499 (CanLII), per Stromberg-Stein JA - officer's experience with dial-a-dope R v Navales, 2011 ABQB 404 (CanLII), per Hughes J
    R v Acosta, 2014 BCCA 218 (CanLII), per Saunders JA
  3. R v Rajaratnam, 2006 ABCA 333 (CanLII), per curiam, at para 25
    R v Kluczny, 2005 ABQB 350 (CanLII), per Moen J, at para 51
  4. R v Juan, 2007 BCCA 351 (CanLII), per Thackray JA, at paras 27 to 28
  5. R v RMJT, 2014 MBCA 36 (CanLII), per Cameron JA, at paras 56 to 58
    R v Jacob (J.A.), 2013 MBCA 29 (CanLII), per Beard JA, at para 35
  6. Galye, supra, at para 38 ("The assessment of whether objective grounds existed involves placing a reasonable person in the position of the officer and having that person assess the circumstances through the lens of someone who has the same experience, training, knowledge and skills as the officer. If that reasonable person would reach the same conclusion as the police officer, then the grounds for arrest will be considered to be objectively reasonable")
  7. R v Chervinski, 2013 ABQB 29 (CanLII), per Hall J, at paras 21 to 22
    R v Debot, 1989 CanLII 13 (SCC) , (1989), 52 CCC (3d) 193, per Wilson J, at para 50
  8. R v Slippery, 2014 SKCA 23 (CanLII), per Whitmore JA, at para 32
  9. Eccles v Bourque, 1974 CanLII 191

Objective Factors

The subjective belief must be reasonable.[1]

No Ex Post Facto Analysis

Evaluation of grounds is based on what facts the officer was aware of at the time. It not relevant whether the facts, circumstances or inferences made were 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.[2]

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

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

Inferences

See also: Inferences

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

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

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

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

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

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

Judicial Notice

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

  1. See R v Durling, 2006 NSCA 124 (CanLII), per MacDonald CJ, at paras 20, 27 to 28
    R v Schiers, [2003] NSJ No. 453 (C.A.)(*no CanLII links) , at para 15
    R v Jackson, at p. 131
    Re Lubell and The Queen, 1973 CanLII 1488 (ON SC), per Zuber J, at p. 190
    R v Sanchez, 1994 CanLII 5271 (ON SC), per Hill J, at pp. 365, 370
    R v Church of Scientology (No. 6), at pp. 514-5
  2. R v Jacobson, 2006 CanLII 12292 (ON CA) , [2006] OJ No 1527 (Ont. C.A.), per Rosenberg JA, at para 22
  3. R v Cunsolo, 2008 CanLII 48640 (ON SC), per Hill J, at para 135
  4. R v Jacob (J.A.), at para 36
  5. R v Plummer, 2011 ONCA 350 (CanLII) , [2011] OJ No 2034 (C.A.), per MacPherson JA, at para 23 - referring to grounds of arrest
    R v Dene, 2010 ONCA 796 (CanLII), per curiam, at para 4
  6. R v Polashek, 1999 CanLII 3714 (ON CA) , (1999) 45 OR (3d) 434 (ONCA), per Rosenberg JA
    R v Barclay, 2018 ONCA 114 (CanLII), per Hoy ACJ, at para 36
  7. R v Lacelle, 2013 ONCA 390 (CanLII), per curiam, at para 6

Compared to Suspicion

See also: Reasonable Suspicion

Reasonable suspicion requires a "reasonable possibility" of certainty while reasonable and probable grounds requires a "reasonable probability" of certainty.[1]

Where the police cannot obtain evidence without violating the Charter-based only on suspicion, conjecture, hypothesis or a "fishing expedition".[2]

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.[3]

  1. R v Buchanan, 2020 ONCA 245 (CanLII), per Fairburn JA, at para 23 ("Reasonable grounds to suspect is a lower standard than reasonable grounds to believe. The first engages a reasonable possibility, while the latter engages a reasonable probability")
    R v Chehil, 2013 SCC 49 (CanLII), per Karakatsanis J, at para 27
  2. R v Kokesch, 1990 CanLII 55 (SCC) , [1990] 3 SCR 3, per Sopinka J ("Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally.")
    R v Sanchez, 1994 CanLII 5271 (ON SC), per Hill J
    R v Mahmood, 2008 CanLII 51774 (ONSC), per Quigley J
  3. Mahmood, ibid.

In Arrest

In Search Warrants

See also: Judicial Authorization Standard of Review

Special Rules

Confidential Informers

See also: Confidential Informers

Where the basis of the warrant relies on a confidential informer, the requirement from R v Debot must be considered.[1] Generally, the requirement will increase "the level of verification required" where "credibility cannot be assessed", "fewer details are provided", and "the risk of innocent coincidence is greater". [2]

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

  1. R v Hosie, 1996 CanLII 450 (ON CA) , [1996] OJ No 2175 (ONCA), per Rosenberg JA, at para 12
    See R v Debot, 1989 CanLII 13 (SCC) , (1989), 52 CCC (3d) 193, per Wilson J, at p. 215 (SCC)
  2. Debot, ibid., at p. 218
  3. Template:CanLIRP, per Martin JA, at para 23, aff’d 2008 SCC 65 (CanLII), [2008] 3 SCR 451, per McLachlin CJ

Drunk Driving

Drug Trafficking and Possession

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

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

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

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

Search Warrant Standard of Review

General Principles

See also: Applying for Judicial Authorizations

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

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

Test on Review

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

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

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

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

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

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

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

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

Appeal

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

  1. R v Scott, 2015 MBQB 87 (CanLII), per Edmond J, at para 8
  2. R v Vice Media Canada Inc., 2017 ONCA 231 (CanLII), per Doherty JA
  3. R v Vu, 2013 SCC 60 (CanLII), per Cromwell J (9:0), at para 16 ("The question for the reviewing judge 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" [quotations omitted])
    R v Araujo, 2000 SCC 65 (CanLII), per LeBel J, at para 51 ("The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.")
    see also: R v Morelli, 2010 SCC 8 (CanLII), per Fish J, at para 40
    R v Campbell, 2011 SCC 32 (CanLII), per Charron J, at para 14
    R v Dionisi, 2012 ABCA 20 (CanLII), per curiam, at para 24
    R v Lee, 2011 ABCA 310 (CanLII), per O’Brien JA, at para 14
  4. R v Wallace, 2016 NSCA 79 (CanLII), per Beveridge JA, at para 27
  5. R v Fan, 2013 BCSC 445 (CanLII), per BJ Brown J, at para 17
    R v Bishop, 2010 BCSC 1927 (CanLII), per Cullen J, at paras 47 to 61
    R v Colbourne, 2001 CanLII 4711 (ON CA), [2001] OJ No 3620 (C.A.), per Doherty JA
  6. Fan, supra, at para 17
    Lahaie v Canada (Attorney General), 2010 ONCA 516 (CanLII), per curiam, at para 40
  7. R v Concepcion, 1994 CanLII 1746 (BC CA), (1994), 48 BCAC 44, per Finch JA
  8. R v Morley, 2013 BCSC 463 (CanLII), per Arnold-Bailey J, at paras 21 to 22
  9. R v Du, 2004 ABQB 937 (CanLII), per Macklin J, at para 20 ("While the Crown quite properly took the view that it should not apply for a fresh warrant while the issue of the stay [arising from a quashed warrant] remained extant, there was nothing to prevent the Crown from doing or preparing whatever was necessary for an application to be brought almost immediately after the results of this application were known.")
  10. R v Cunsolo, [2008] OJ No 3754, 2008 CanLII 48640 (ON SC), per Hill J, at para 135
  11. R v Nguyen, 2007 ONCA 24 (CanLII), per curiam, at para 48
    R v NNM, 2007 CanLII 31570 (ONSC), per Hill J, at para 320
  12. NNM, ibid., at para 320
    R v Araujo, 2000 SCC 65 (CanLII), per LeBel J at 469 to 470
  13. NNM, ibid., at para 320
    R v Morris, 1998 CanLII 1344 (NSCA), per Cromwell JA, at p. 551 ("requirement of candour is not difficult to understand; there is nothing technical about it")
    R v Hosie, 1996 CanLII 450 (ONCA), per Rosenberg JA, at p. 399 (a justice can only perform their duty if "provided with accurate and candid information")
    R v Agensys Intl Inc, 2004 CanLII 17920 (ONCA), per Gillese JA, at p. 491
  14. R v Liberatore, 2014 NSCA 109 (CanLII), per Fichaud JA

Standing

See also: Charter Applications

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

A co-conspirator does not have standing to challenge the wiretap that is alleged to have breached another co-conspirator's rights.[2]

  1. R v Chang (2003) 173 CCC (3d) 397 (ONCA), 2003 CanLII 29135 (ON CA), per O’Connor ACJ and Armstrong JA
  2. R v Montgomery, 2016 BCCA 379 (CanLII), per Frankel JA, at para 103
    R v Cheung (1997), 1997 CanLII 3763 (BC CA), 119 C.C.C. (3d) 507 (B.C.C.A.), per Braidwood JA, at paras 64 to 65
    cf. R v Montoute 1991 CanLII 2719 (AB CA), 62 CCC (3d) 481, per Harradence JA, at pp. 506‒507

Presumptions and Burdens

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

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

Degree of Deference

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

The test on review is not whether the reviewing judge would have granted the warrant but whether there was "reliable evidence that might reasonably be believed" on which the warrant could have been issued.[4]

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

A search of a private premises "is a derogation from common law rights of ownership. The necessary formalities in the execution of the warrant must, therefore, be strictly observed".[6]

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

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

Quality of Drafting

See also: Information to Obtain a Search Warrant

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

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

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

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

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

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

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

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

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

  1. R v Nguyen, 2011 ONCA 465 (CanLII), per Blair JA, at para 58
  2. R v Pires, 2005 SCC 66 (CanLII), per Charron J (7:0), at para 30
  3. R v Ngo, 2011 ONSC 6676 (CanLII), per Hill J, at para 34
  4. Ngo, ibid., at para 34
    R v Durling, 2006 NSCA 124 (CanLII), per MacDonald CJ, at para 19
    R v Sanchez, 1994 CanLII 5271 (ONSC), per Hill J, at p. 364
    R v Melenchuk (1993), 1993 CanLII 1011 (BC CA), per Gibbs JA, at para 15 ("It would be impractical to expect of an officer swearing an information in these circumstances the precise prose of an Oxford grammarian, the detailed disclosures of a confessional and the legal knowledge of a Rhodes scholar.")
  5. Simonyi-Gindele v Sliter, 1991 CanLII 984 (BC CA), per Gibbs JA ("The warrant must be read in its entirety in order to arrive at the meaning that the person exercising it would attribute to it.")
  6. R v Whitaker, 2008 BCCA 174 (CanLII), per Frankel JA
    R v Brachi, 2005 BCCA 461 (CanLII), per Smith JA
    Re Church of Scientology & the Queen (No. 6) 1987 CanLII 122 (ON CA), (1987), 31 CCC (3d) 449 (Ont. C.A.), per curiam
  7. Ngo, supra, at para 34
  8. Ngo, supra, at para 34
    CBC v AG of NB, 2000 SCC 65 (CanLII), per Lebel J, at p. 470
    R v Ling, 2009 BCCA 70 (CanLII), per Bauman JA, at para 43
  9. e.g. R v Morley, 2013 BCSC 463 (CanLII), per Arnold-Bailey J, at para 45
  10. R v McNeice, 2010 BCSC 1544 (CanLII), per Meiklem J, at para 33

Errors, Omissions and Mischaracterizations in the Warrant Order

Time Limitation on the Search

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

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

  1. R v Du, 2004 ABQB 849 (CanLII), per Macklin J - warrant quashed for failing to set time range of search
  2. R v Jones, 2011 ONCA 632 (CanLII), per Blair JA (3:0)
  3. R v Rafferty, 2012 ONSC 703 (CanLII), per Heeney J, at para 23

Overbroad Authority

It is essential that the warrant not be overly broad. The description of the targets of the search should not be so vague as to give the police the ability to rummage through the premises. [1]

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

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

Errors, Omissions and Mischaracterizations in Information to Obtain

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

Affiant Standard of Care

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

Knowledge Requirement of The Affiant for Errors or Omissions

Errors or omissions that are found must be shown to have been known, or should have been known, by the affiant.[4]

  1. R v Hafizi, 2016 ONCA 933 (CanLII), per Brown JA, at para 44
  2. R v Prosser, 2014 ONSC 2645 (CanLII), per Wilson J, at para 52 See R v Villa, 1988 CarswellOnt 1641 (H.C.J.)(*no CanLII links) , at para 14
  3. Garofoli, supra, at p. 1452 (“fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge”.)
    R v Pires, 2005 SCC 66 (CanLII), per Charron J (7:0), at para 8
  4. World Bank Group v Wallace, [2016] 1 SCR 207, 2016 SCC 15 (CanLII), per Moldaver and Côté J (9:0)

Material Omissions and Non-Disclosure

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

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

It is improper for the warrant to contain incomplete, misleading or misrepresented information on the investigation. This can occur where the affiant is deliberately kept out of the investigation and only given favourable information to support the warrant. [3]

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

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

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

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

Criminal Record

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

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

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

False or Misleading Information

Errors in the information, "whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation of the ... authorization."[1]

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

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

Deliberate Misleading

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

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

Error on Source

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

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

Failure to Take Investigative Steps

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

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

Excising or Severing Errors

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

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

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

Excised and Redacted Portions of ITO

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

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

  1. See R v Bisson, 1994 CanLII 46 (SCC) , [1994] 3 SCR 1097, (1994) 94 CCC (3d) 94, per curiam, at pp. 95-96
    R v Budd, 2000 CanLII 17014 (ON CA), per Rosenberg JA (3:0), at paras 20 to 23
    R v Agensys International Inc., 2004 CanLII 17920 (ON CA), per Gillese JA (3:0), at para 32
    R v Morley, 2013 BCSC 463 (CanLII), per Arnold-Bailey J, at para 33
  2. Pitre v R, 2011 NBCA 106 (CanLII), per Drapeau CJ, at para 34

Procedure for Review of Warrant

See also: Voir Dire#Challenging Warrant Validity

When an accused person seeks to challenge an ITO supporting a warrant by cross-examination of the informant the procedure should go as follows:[1]

  1. The trial judge should determine whether a voir dire is necessary and, if so, whether the calling of evidence should be permitted;
  2. If the judge accedes to the request to hold a voir dire and the accused wishes to cross-examine the informant, then the accused must obtain leave of the judge to do so. If the judge grants leave, then he or she can limit the scope of the cross-examination;
  3. Cross-examination should proceed to the extent permitted by the order granting leave;
  4. Re-examination, if any, should follow the cross-examination; and
  5. The trial judge should determine whether the record as amplified on the review could support the issuance of the warrant.

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".[1] The determination of whether to permit the accused to challenge the warrant can be made on the basis of submissions of counsel.[2] Where the threshold has been passed, it does not necessarily follow that witnesses be called. The court may allow only arguments based on the face of the warrant. [3]

A hearing to challenge a warrant is often referred to as a "Garofoli hearing".[4]

  1. R v Vukelich, 1996 CanLII 1005 (BC CA) , 108 CCC (3d) 195, per McEachern JA
  2. Vukelich, ibid., at paras 17, 26
    R v Wilson, 2011 BCCA 252 (CanLII), per Finkel JA, at para 62
  3. Wilson, supra, at paras 62, 63
  4. R v Fearon, 2020 ONCJ 25 (CanLII), per Band J, at para 10 ("A Garofoli hearing is a pre-trial, threshold evidentiary hearing challenging the validity of an evidence-gathering tool. It is not a trial.")

Types of Challenges to the Warrant

Challenging to a warrant may come as an attack on the facial or sub-facial validity. The court has discretion whether to treat each attack separately or in a single voir dire.[1]

Facial validity

An attack on facial validity involves an examination of the ITO by itself, not involving on amplification or record evidence, and determine whether a justice could have issued the warrant.[2]

Sub-facial validity

An attack on sub-facial validity involves an examination of the form of the ITO with a view to "impeach the reliability of its content" and to determine "whether, on the record before the authorizing justice as amplified on the review, the authorizing justice could have issued the warrant".[3] This form of attack can involve the use of amplification evidence, but it should not expand the review to permit the judge from giving his opinion on whether he would have granted the warrant.[4] The reviewing judge must determine whether "authorizing justice could have issued the warrant" if the judge had been aware of the amplification evidence.[5]

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.[6]


  1. R v Sadikov, 2014 ONCA 72 (CanLII), per Watt JA , at para 36
  2. Sadikov, ibid., at para 37
    R v Araujo, 2000 SCC 65 (CanLII) , [2000] 2 SCR 992, per LeBel J, at para 19
    R v Wilson, 2011 BCCA 252 (CanLII), per Finkel JA, at para 39
  3. Sadikov, ibid., at para 38
    Araujo, supra, at para 50
    Wilson, supra, at para 40
  4. Sadikov, supra, at para 38
  5. Sadikov, supra, at para 38
    Araujo, supra, at para 51
  6. R. v. Sipes, 2009 BCSC 612 at para. 41(complete citation pending)
    World Bank Group v. Wallace, 2016 SCC 15 at para. 121(complete citation pending)

Leave to Cross-Examine Affiant ("Garofoli" Motion)

When conducting an attack on the sub-facial validity of the warrant, the accused may seek leave to cross-examine the affiant who swore the ITO for the purpose of questioning the affiant's reliability and credibility.[1]

The general rule is that leave should be granted where the judge is "satisfied that cross-examination is necessary to enable the accused to make full answer and defence".[2]

The accused must specifically establish "that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization".[3] Phrased differently, the test is whether there is a "reasonable likelihood" that cross-examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge, including the discrediting of one or more of the preconditions to issue the warrant.[4] Generally, this would only include issues of credibility and reliability of the affiant and their sources.[5]

Cross-examination should not be permitted where "there is no reasonable likelihood that it will impact on the question of admissibility of the evidence".[6]

Where cross-examination is permitted, it should be restricted to "questions that are directed to establish that there was no basis which the authorization could have been granted".[7] The judge may further limit the area of cross-examination to specific issues of controversy.[8]

It should not be used to extend the hearing unnecessarily and should not permit discovery of confidential sources.[9]

Where the court denies leave to cross-examine the affiant, the defence may still call other amplification evidence to attack reliability.[10]

The test applied to affiants of a wiretap is not a stringent one.[11]

See Also: R v Pham, 2009 CanLII 60792 (ON SC), per Hill J for a comprehensive review by Justice Hill.

  1. R v Sadikov, 2014 ONCA 72 (CanLII), per Watt JA (3:0), at para 39
  2. R v Garofoli, 1990 CanLII 52 (SCC) , [1990] 2 SCR 1421, per Sopinka J (5:2), at para 88
  3. Garofoli, ibid., at paras 88 to 89
  4. R v Pires; R v Lising, 2005 SCC 66 (CanLII) , [2005] 3 SCR 343, per Charron J, at paras 3, 40
    Garofoli, supra, at p. 1654 (SCR)
    R v Soltan, 2019 ONCA 8 (CanLII), per curiam, at para 6 ("...the test that there was a reasonable likelihood that cross-examination of the affiant would elicit testimony tending to discredit the existence of one or more of the preconditions to the issuance of the search warrants")
    Sadikov, supra, at para 45 ("reasonable likelihood that the proposed cross-examination will elicit evidence that tends to discredit the existence of a condition precedent to the issuance of the warrant")
  5. Sadikov, supra, at para 40
  6. R v Pires; R v Lising, supra, at para 31
  7. Garofoli, supra, at paras 88 to 89
  8. Pires, supra, at para 10
  9. Garofoli, supra, at para 87
    Pires, supra, at para 10
  10. Sadikov, supra, at paras 41, 45
  11. R v Williams, 2003 CanLII 18484 (ON CA) , (2003), 181 CCC (3d) 414 (Ont. C.A.), per Rosenberg JA , at para 11

Amplification Evidence

The reviewing judge is entitled to consider "evidence bearing on the existence in fact of reasonable and probable cause shown to be in the knowledge of the police at the time the warrant was sought.” [1]

Amplification evidence can be elicited at a voir dire to correct minor errors in the ITO. This will be permitted as "long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice." [2]

Amplification evidence should not be used "to remove the requirement that the informant make their case to the issuing justice in the initial application" or else it "would turn the prior authorization process into a sham."[3] It cannot be used to "retroactively authorize a search that was not initially supported by reasonable and probable grounds".[4]

It can be permitted to amplify an innocent mis-statement or mis-characterization within the ITO.[5]

Evidence obtained after the execution of the warrant cannot be admitted as amplification evidence.[6]

Evidence

It appears that amplification evidence can take the form of transcripts from preliminary inquiries, police notes and reports.[7]

  1. R v Gordon, 1999 CanLII 18640 (MB CA) , (1999) 138 Man. R. (2d) 298 (C.A.), per Helper JA, at para 36 citing R v Morris 1998 CanLII 1344 (NS CA), (1998), 134 CCC (3d) 539 (NSCA), per Cromwell JA (3:0)
  2. R v Morelli, 2010 SCC 8 (CanLII), per Fish J, at para 41
  3. R v Morley, 2013 BCSC 463 (CanLII), per Arnold-Bailey J, at para 37
  4. Morelli, supra, at para 42
    R v Voong, 2013 BCCA 527 (CanLII), per MacKenzie JA (3:0), at para 56
  5. R v Plant, 1993 CanLII 70 (SCC) , [1993] 3 SCR 281, per Sopinka J - ITO was overly specific of address, when informant gave a more general description. Amplification clarified how full address was obtained.
  6. Voong, supra
  7. e.g. see R v MacDonald, 2014 NSSC 218 (CanLII), per Arnold J, at para 15

Discretion to Strike Otherwise Valid Warrant

Even where a warrant passes Araujo standard, it has been suggested that the reviewing court maintains "residual discretion" to declare it invalid on the basis that it is necessary to "protect the integrity of the process".[1] Appropriate circumstances to invalidate a warrant using residual discretion would include cases where the affiant has deliberateyl given false material statesments or omitted material facts.[2]

  1. R v Montgomery, 2016 BCCA 379 (CanLII), per Frankel JA, at para 100
  2. Montgomery, ibid., at para 100

Effect of an Invalid Warrant

Once a warrant is quashed, the reviewing court has the power to order the items seized to be returned.[1] This power is incidental to the power to quash a warrant.[2]

If the items seized are needed for an ongoing or anticipated prosecution, the court can refuse to return the items.[3]

There are no formal requirements necessary for the Crown to establish the need for the items.[4]

Factors to consider include:[5]

  • The conduct of the prosecuting authorities in relation to the search and seizure;
  • the seriousness of the alleged offence,
  • the degree of potential cogency of the things in proving the charge,
  • the nature of the defect in the warrant and
  • the potential prejudice to the owner from being kept out of possession.
  1. R v Du, 2004 ABQB 937 (CanLII), per Macklin J , at para 8
  2. Du, ibid., at para 8
  3. Du, ibid., at para 8
  4. Du, ibid., at para 8
  5. Du, ibid., at para 8

See Also

Execution of Search Warrants

Scope of Search Warrant Powers

A warrant that authorizes a search of a location for a thing "confers on those executing that warrant the authority to conduct a reasonable examination of anything at that location within which the specified things might be found".[1]

Framed differently, an authorization to search a place generally permits searches of receptacles within that place.[2]

However, a residential warrant permitting the search of a residence cannot grant the authorization to search electronic devices. Devices found must be searched under authorization of another warrant or must be specially authorized by the residential warrant.[3] The "receptacle rule" does not apply.[4]

Once an officer enters a premises under a valid warrant during the specified time frame, the warrant remains operative until the search is complete and the officers leave.[5]

Officers conducting a search are entitled to "ensure a potentially volatile situation was under control" and during this time they are able to deny any detainee of their right to counsel.[6]

A search does not become unreasonable simply because, during the execution of the warrant, the police are anticipating to find evidence of other offences.[7]

A particular "method of search should only… be found to be unreasonable if that means that no lawful search has any real prospect of being effective".[8]

The reasonableness of a search will sometimes turn on "the amount of information the police must have before deciding how the search will be conducted, and the level of risk they must tolerate as a result of the way the searches conducted".[9]

Section 29 of the code does not require that any particular member of an entry team of police officers have a copy of the warrant "with him" as long as at least one member of the search team participating has a copy of the warrant and can produce upon request.[10]

The wearing of masks by police officers will not render a reasonable search unreasonable and vice versa. [11]

"Fellow Officer test"

The scope of the search warrant should be discernible from the face of the text without the benefit of the ITO. The warrant should satisfy the "fellow officer" test which states that "a fellow officer be able to understand the items sought and the location to be searched as a result of reviewing the face of the warrant".[12]

Duration of Search

Once the police enter into the premises within the window of time specified by the warrant, the "warrant remains operative until the police complete their search and finally leave the premises".[13] The police may stay in the residence beyond the authorized time limit to finish their search.[14]

However, once the search is finished the police must leave immediately.[15] Once departed, the police may not re-enter without a new authorization.[16]

Officer Safety

While executing a search warrant the police may perform searches that are not authorized within the warrant for the purposes of officer safety.[17]

Providing Copies of Warrants Upon Execution

Under s.487.1(7), in executing a 487.1 telewarrant, the officer must provide a copy of the warrant to "any person present and ostensibly in control of the place or premises".

Under s.487.1(8), in executing a 487.1 telewarrant, the officer must affix a copy of the warrant at the place of residence should there be no one present at the time.

  1. R v Vu, 2013 SCC 60 (CanLII), per Cromwell J, at para 23
  2. Vu, ibid., at para 39
    J.A. Fontana and D. Keeshan, The Law of Search and Seizure in Canada (8th ed. 2010), at p. 1181
    e.g. R v E. Star International Inc., 2009 ONCJ 576 (CanLII), per Chisvin J, at para 17
    BGI Atlantic Inc. v Canada (Minister of Fisheries and Oceans), 2004 NLSCTD 165 (CanLII), per Leblanc J, at paras 70 to 72
    R v Charles, 2012 ONSC 2001 (CanLII), per Molloy J, at para 61
  3. Vu, supra, at para 24
  4. Vu, supra, at paras 24, 39{{{3}}}
  5. R v Woodall, [1991] OJ No 3565 (Gen. Div.)(*no CanLII links) , aff’d [1993] O. J. No. 4001 (C.A.)(*no CanLII links)
  6. R v Strachan, 1988 CanLII 25 (SCC) , [1988] 2 SCR 980, per Dickson CJ
  7. R v Daigle, 1994 CanLII 214 (BC CA) , [1994] BCJ No. 2118, per Rowles JA, at para 21
    R v Yue, [1998] BCJ No. 1619(*no CanLII links) , at para 5
  8. R v Cornell, 2009 ABCA 147 (CanLII), per Slatter JA
  9. Cornell, ibid.
  10. Cornell, ibid.
  11. Cornell, ibid. in obiter
  12. R v Townsend, 2017 ONSC 3435 (CanLII), per Varpio J, at para 53 ("As a result of this interplay between the face of the warrant and the ITO, the face of the warrant is expected to satisfy what is known as the “fellow officer” test – that is, would a fellow officer be able to understand the items sought and the location to be searched as a result of reviewing the face of the warrant...")
    R v Rafferty, 2012 ONSC 703 (CanLII), per Heeney J, at para 103
  13. Rafferty, supra, at para 28
    "The law is clear that once the police enter the premises within the time frame specified in the search warrant, as they did here, the warrant remains operative until the police complete their search and finally leave the premises: R v Woodall, [1991] OJ No 3565 (Gen. Div.), aff’d [1993] O. J. No. 4001 (C.A.)."
  14. Woodall, ibid., at paras 57 to 61 aff'd ONCA, at para 2
    R v Brown, 2010 ONSC 2280 (CanLII), per James J, at paras 17 to 23
    Rafferty, supra, at paras 26 to 28
    R v Gerlitz, 2013 ABQB 624 (CanLII), per Gates J, at paras 61 to 71
  15. R v Shin, 2015 ONCA 189 (CanLII), per Gillese JA, at paras 24, 34, and 57
  16. R v Finlay and Grellette, 1985 CanLII 117 (ON CA), per Martin JA, at p. 63
  17. R v Chuhaniuk, 2010 BCCA 403 (CanLII), at para 55

Lawful Entry into a Dwelling House

When executing an arrest warrant for someone in a residence, the police may enter under the "knock and announce" doctrine without a residential search warrant.[1]

Where the police are present at a dwelling-house that is accessible to them, they may enter in certain circumstances. Unless there are exigent circumstances, the officer must make an announcement before forcing entry into a dwelling house. This is known as the knock-and-announce rule. This involves the following:[2]

  1. notice of presence by knocking or ringing the door bell,
  2. notice of authority, by identifying themselves as law enforcement officers and
  3. notice of purpose, by stating a lawful reason for entry.

Once the announcement has been made the police must give the potential occupants a reasonable amount of time to answer the door.[3]

The purpose of this rule is to protect "the dignity and privacy interests of the occupants of the house, and the enhancement of the safety of the police and the public".[4]

Where announcement has been made and the police receive no answer, they are entitled to enter the home by force (the knock-and-break-in-the-door-if-no-answer rule). [5]

An officer executing a search warrant must have the warrant available for production to allow the occupant to know (1) the reason for the search, informing them of their legal position and (2) that there is a "colour of authority for the police to enter.[6]

Hard/Dynamic Entry

A hard entry (or dynamic entry) is an entry into a house without following the "knock-and-announce" common law rule.

The burden is upon the police to prove on a balance of probabilities that the departure from the knock-and-announce rule was justified.[7]

Police may enter a residence with a search warrant and not follow the common law rule where they have grounds believe that announcing may result in evidence being destroyed or resistance may be made where officers will be put at risk. [8] This has been approved in circumstances involving investigation for child pornography.[9]

The use of "hard entries" do not require judicial approval, but including it in the ITO would go contribute to the validity of the warrant.[10]

  1. R v Cornell, 2010 SCC 31 (CanLII) , [2010] 2 SCR 142, per Cromwell J, at para 2bttk (knock and announce rule)
    See Execution of Search Warrants#Lawful Entry into a Dwelling House
    Also Warrant Arrests#Feeney Warrant of Arrest
  2. Cornell, supra, at para 20
  3. R v Pan, 2012 ONCA 581 (CanLII), per Laskin JA, at para 40
    also R v Cao, 2008 BCSC 139 (CanLII) , 167 C.R.R. (2d) 120, per Bruce J
  4. Pan, supra citing Cornell, at para 19
  5. Pan, supra, at para 38
  6. See Search and Seizure Law in Canada, at pp. 17-5
  7. R v Burke, 2013 ONCA 424 (CanLII), per Weiler JA, at