Warrantless Searches

From Criminal Law Notebook
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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]

  1. 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 ... ")
  2. 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), per Iacobucci J
    R v Feeney, 1997 CanLII 342 (SCC), at para 54
  3. see R v Caslake, 1998 CanLII 838 (SCC), 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