Warrantless Searches: Difference between revisions
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==Introduction== | ==Introduction== | ||
Generally speaking, a valid search should only be done when under judicial authorization where it is feasible to get one.<ref> | Generally speaking, a valid search should only be done when under judicial authorization where it is feasible to get one.<ref> | ||
Hunter v Southam Inc., [1984] 2 SCR 145, [http://canlii.ca/t/1mgc1 1984 CanLII 33] ("where it is feasible to obtain prior authorization, ... such authorization is a precondition for a valid search and seizure ... ")</ref> | Hunter v Southam Inc., [1984] 2 SCR 145, [http://canlii.ca/t/1mgc1 1984 CanLII 33]{{perSCC|Dickson J}} ("where it is feasible to obtain prior authorization, ... such authorization is a precondition for a valid search and seizure ... ")</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> | 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> | ||
Hunter v Southam Inc. | Hunter v Southam Inc.{{supra}}<br> | ||
R v Golden, [2001] 3 SCR 679, [http://canlii.ca/t/51xm 2001 SCC 83] (CanLII)<br> | R v Golden, [2001] 3 SCR 679, [http://canlii.ca/t/51xm 2001 SCC 83] (CanLII){{perSCC| Iacobucci and Arbour JJ}}<br> | ||
R v Mann, [http://canlii.ca/t/1hmp1 2004 SCC 52] (CanLII)<br> | R v Mann, [http://canlii.ca/t/1hmp1 2004 SCC 52] (CanLII){{perSCC| Iacobucci J}}<br> | ||
R v Feeney, [http://canlii.ca/t/1fr1w 1997 CanLII 342] (SCC), [1997] 2 SCR 13, at para 54<br> | R v Feeney, [http://canlii.ca/t/1fr1w 1997 CanLII 342] (SCC), [1997] 2 SCR 13, at para 54<br> | ||
</ref> The Crown then must prove the reasonableness of the search on a balance of probabilities. <ref>see R v Caslake, [http://canlii.ca/t/1fqww 1998 CanLII 838] (SCC), [1998] 1 SCR 51 | </ref> The Crown then must prove the reasonableness of the search on a balance of probabilities. <ref>see R v Caslake, [http://canlii.ca/t/1fqww 1998 CanLII 838] (SCC), [1998] 1 SCR 51{{perSCC|Lamer CJ}} at para 11 [http://canlii.ca/t/1fqww 1998 CanLII 838]</ref> Reasonableness of a search has both a subjective and objective component.<Ref>R v Bernshaw, [http://canlii.ca/t/1frmf 1995 CanLII 150] (SCC){{perSCC|Sopinka J}}</ref> | ||
The Police cannot enter into a private dwelling without a warrant, consent, or exigent circumstances.<ref>Feeney{{supra}} at para 44</ref> | The Police cannot enter into a private dwelling without a warrant, consent, or exigent circumstances.<ref>Feeney{{supra}} at para 44</ref> | ||
Revision as of 00:03, 29 November 2018
Introduction
Generally speaking, a valid search should only be done when under judicial authorization where it is feasible to get one.[1]
An individual alleging a breach of his or her Charter rights bears the burden of proving that violation on a balance of probabilities. That being said, if the individual can demonstrate that a police search was conducted without a warrant, that search will be presumed to be unreasonable unless shown to be justified.[2] The Crown then must prove the reasonableness of the search on a balance of probabilities. [3] Reasonableness of a search has both a subjective and objective component.[4]
The Police cannot enter into a private dwelling without a warrant, consent, or exigent circumstances.[5]
Police can be authorized to violate a person's right to privacy either through statute or by common law power.
- ↑ 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 ... ")
- ↑
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
- ↑ see R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, per Lamer CJ at para 11 1998 CanLII 838
- ↑ R v Bernshaw, 1995 CanLII 150 (SCC), 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