|
|
| (30 intermediate revisions by the same user not shown) |
| Line 1: |
Line 1: |
| | [[fr:Pouvoirs_de_recherche_légaux_sans_mandat]] |
| | {{Currency2|May|2021}} |
| {{LevelZero}}{{HeaderWarrantless}} | | {{LevelZero}}{{HeaderWarrantless}} |
| ==General Principles== | | ==General Principles== |
| Line 5: |
Line 7: |
| 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. | | 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== | | ==Border Searches== |
| | | * [[Searches at an International Border]] |
| At international border crossings all personal zones of privacy are subject to a "diminished expectation of privacy".<ref>
| |
| ''R v Simmons'', [http://canlii.ca/t/1ftcb 1988 CanLII 12] (SCC), [1988] 2 SCR 495{{perSCC|Dickson CJ}} at paras 48-50
| |
| </ref>
| |
| | |
| {{reflist|2}}
| |
| ===Powers to Search===
| |
| {{quotation|
| |
| ; 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]
| |
| <br>
| |
| '''Samples'''
| |
| (4) ...
| |
| <Br>
| |
| R.S., 1985, c. 1 (2nd Supp.), s. 99; 1988, c. 65, s. 79; 2001, c. 25, s. 59; 2017, c. 7, s. 52.
| |
| | [http://canlii.ca/t/5390k Customs Act]
| |
| }}
| |
| | |
| ; 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".<ref>
| |
| ''R v Canfield'', [http://canlii.ca/t/hs46v 2018 ABQB 408] (CanLII){{perABQB|Belzil J}}{{at|58}}<br>
| |
| ''R v Leask'', [2008] OJ No. 329, [http://canlii.ca/t/1vlpf 2008 ONCJ 25] (CanLII){{perONCJ|Nadel J}} at para 16<br>
| |
| ''R v Saikaley'', [2012] ON No. 6024, [http://canlii.ca/t/fvbkl 2012 ONSC 6794] (CanLII){{perONSC|Lalonde J}} at para 70<br>
| |
| ''R v Moroz'', [http://canlii.ca/t/ft6xj 2012 ONSC 5642] (CanLII){{perONSC|Desotti J}} at para 20<br>
| |
| </ref>
| |
| | |
| {{reflist|2}}
| |
| | |
| ===Electronic Devices===
| |
| ; Fearon test
| |
| The test for searching electronic devices incident to arrest does not apply at border crossings.<ref>
| |
| United States of ''America v Amadi'', [http://canlii.ca/t/hw0jh 2018 ONSC 727]{{perONSC|Dambrot J}} at para 84
| |
| </ref>
| |
| | |
| {{reflist|2}}
| |
| | |
| ===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.<ref>
| |
| ''R v Jones'' (2006), [http://canlii.ca/t/1p4dt 2006 CanLII 28086] (ON CA), 211 CCC (3d) 4 (CA){{perONCA|Doherty JA}}{{at|30}}<br>
| |
| ''R v Singh'', [http://canlii.ca/t/gfrp3 2014 ONSC 5658] (CanLII), 317 CCC (3d) 446{{perONSC|Pomerance J}} at para 49<br>
| |
| </ref>
| |
| | |
| The reduction of privacy rights at borders to protect Canadian sovereignty is a "sufficiently important objective" within s. 1 of the Charter analysis.<ref>
| |
| ''R v Canfield'', [http://canlii.ca/t/hs46v 2018 ABQB 408] (CanLII){{perABQB|Belzil J}} at para 77<br>
| |
| </ref>
| |
| | |
| It is also a valid exercise of Parliament's criminal law powers.<ref>
| |
| Little Sisters Book & Art ''Emporium v Canada'', [http://canlii.ca/t/5239 2000 SCC 69] (CanLII){{perSCC|Binnie J}}{{at|148}}<br>
| |
| </ref>
| |
| | |
| Section 99(1)(a) of the Customs Act does not violate s. 8 of the Charter.<ref>
| |
| {{supra1|Canfield}}
| |
| </ref>
| |
| {{reflist|2}}
| |
|
| |
|
| ==See Also== | | ==See Also== |
| * [[Warrantless Seizure Under Section 489]] - Section 489 also provides authority for police to seized things for which they reasonably suspect affords evidence to a criminal offence. | | * [[Warrantless Seizure Under Section 489]] - Section 489 also provides authority for police to seized things for which they reasonably suspect affords evidence to a criminal offence. |
| This page was last substantively updated or reviewed May 2021. (Rev. # 95457)
|
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.
Border Searches
See Also
