Warrantless Searches: Difference between revisions
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{{LevelZero}}{{HeaderWarrantless}} | [[fr:Perquisitions sans mandat]]{{LevelZero}}{{HeaderWarrantless}} | ||
==Introduction== | ==Introduction== | ||
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Generally speaking, a lawful search can only be done when under judicial authorization where it is feasible to get one.<ref> | Generally speaking, a lawful search can only be done when under judicial authorization where it is feasible to get one.<ref> | ||
{{CanLIIRPC|Hunter v Southam Inc|1mgc1|1984 CanLII 33|, [1984] 2 SCR 145}}{{perSCC|Dickson J}} ("where it is feasible to obtain prior authorization, ... such authorization is a precondition for a valid search and seizure ... ")</ref> | |||
; Burden of Proof | ; 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.<ref> | 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.<ref> | ||
{{supra1|Hunter v Southam Inc | {{supra1|Hunter v Southam Inc}}<br> | ||
{{CanLIIRP|Golden|51xm|2001 SCC 83 (CanLII)|[2001] 3 SCR 679}}{{perSCC| Iacobucci and Arbour JJ}}<br> | |||
{{ | {{CanLIIRP|Mann|1hmp1|2004 SCC 52 (CanLII)|2004] 3 SCR 59}}{{perSCC| Iacobucci J}}<br> | ||
{{ | {{CanLIIRP|Feeney|1fr1w|1997 CanLII 342 (SCC)|[1997] 2 SCR 13}}{{perSCC-H|Sopinka J}}{{atL|1fr1w|54}}<br> | ||
</ref> | </ref> | ||
The Crown then must prove the reasonableness of the search on a balance of probabilities. <ref> | The Crown then must prove the reasonableness of the search on a balance of probabilities. <ref> | ||
see {{ | see {{CanLIIRP|Caslake|1fqww|1998 CanLII 838 (SCC)|[1998] 1 SCR 51}}{{perSCC|Lamer CJ}}{{AtL|1fqww|11}}</ref> | ||
Reasonableness of a search has both a subjective and objective component.<ref> | Reasonableness of a search has both a subjective and objective component.<ref> | ||
{{ | {{CanLIIRP|Bernshaw|1frmf|1995 CanLII 150 (SCC)|[1995] 1 SCR 254}}{{perSCC-H|Sopinka J}}</ref> | ||
; | ; Entry into a Residence | ||
The Police cannot enter into a private dwelling without a warrant, consent of the homeower(s), or | The Police cannot enter into a private dwelling without a warrant, consent of the homeower(s), or exigent circumstances.<ref> | ||
{{supra1|Feeney}}{{atL|1fr1w|44}}</ref> | {{supra1|Feeney}}{{atL|1fr1w|44}}</ref> | ||
Latest revision as of 20:17, 11 August 2024
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]
- Entry into a Residence
The Police cannot enter into a private dwelling without a warrant, consent of the homeower(s), or exigent circumstances.[5]
- ↑ Hunter v Southam Inc, 1984 CanLII 33, , [1984] 2 SCR 145, per Dickson J ("where it is feasible to obtain prior authorization, ... such authorization is a precondition for a valid search and seizure ... ")
- ↑
Hunter v Southam Inc, supra
R v Golden, 2001 SCC 83 (CanLII), [2001] 3 SCR 679, per Iacobucci and Arbour JJ
R v Mann, 2004 SCC 52 (CanLII), 2004] 3 SCR 59, per Iacobucci J
R v Feeney, 1997 CanLII 342 (SCC), [1997] 2 SCR 13, per Sopinka J, at para 54
- ↑ see R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, per Lamer CJ, at para 11
- ↑ R v Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 SCR 254, per Sopinka J
- ↑ Feeney, supra, at para 44
Categories of Searches
There are several types of warrantless searches:
- Search by Consent
- Search Incident to Investigative Detention
- Search Incident to Arrest
- Search of Abandoned Property
- Search in Plain View
- Exigent Circumstances
- Statutory Warrantless Search Powers