Warrantless Searches
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 ("where it is feasible to obtain prior authorization, ... such authorization is a precondition for a valid search and seizure ... ")
- ↑
Hunter v Southam Inc., [1984] 2 SCR 145, 1984 CanLII 33
R v Golden, [2001] 3 SCR 679, 2001 SCC 83 (CanLII)
R v Mann, 2004 SCC 52 (CanLII)
R v Feeney, 1997 CanLII 342 (SCC), [1997] 2 SCR 13, at para 54
- ↑ see R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, at para 11 1998 CanLII 838
- ↑ R v Bernshaw, 1995 CanLII 150 (SCC)
- ↑ Feeney, supra at para 44
Statute
Provincially constituted police forces are created by an act of provincial legislature. Within these acts there will typically be some outline of basic duties as a peace officer.[1]
Section 489 also provides authority for police to seized things for which they reasonably suspect affords evidence to a criminal offence. (See Warrantless Seizure Under Section 489)
- ↑
see:
NLD: Royal Newfoundland Constabulary Act, 1992, SNL 1992, c R-17
NS: Police Act, SNS 2004, c 31 at s. 30
ON: Police Services Act, RSO 1990, c P.15 at s. 42
MB: The Police Services Act, CCSM c P94.5
Common Law
Categories of Searches
There are several types of warrantless searches:
- Search by Consent
- Search Incident to Investigative Detention
- Search Incident to Arrest
- Search of Abandoned Property
- Search in Plain View
- Exigent Circumstances