Criminal Law Notebook

Consent Search

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General Principles

A search by consent is one form of warrantless search. A search conducted with valid consent is lawful.[1]

Valid consent exists where the following is present:[2]

  1. There was a consent, either express or implied;
  2. The consenting party has the authority to give the consent;
  3. Consent was voluntary and not the product of police oppression, coercion or other external conduct negating freedom to choose not to consent;
  4. The consenting party knew of the nature of the police conduct to which he or she was being asked to consent;
  5. The consenting party knew they had the ability to refuse the search;
  6. The consenting party was aware of the potential consequences of giving the consent, including a general understanding of the jeopardy resulting from the police conduct about which the consent was being sought.

Voluntary
For consent to be valid it must be voluntary and informed. Voluntary search requires that the consent to be given without coercion.[3]

Informed consent
Informed consent to a search requires the accused to be aware of the right to refuse the search and the consequences of consenting to the search.[4]The party expressing "consent must be possessed of the requisite informational foundation for a true relinquishment of the right. A right to choose requires not only the volition to prefer one option over another, but also sufficient available information to make the preference meaningful.”[5]

Notice of Right to Refuse
The cases are divided on whether the police need to give clear instructions on the right to refuse. [6] Courts opposed to the requirement state that the standard of informed consent is less than the informational component of s. 10(b). The police need not tell the accused of the right to refuse consent. However, a failure to do so may result in a lack of informed consent.[7]

Waiver
The Crown must establish that the accused right to be searched was waived clearly and unequivocally.[8] However, where the accused is given access to counsel there is a presumption of informed consent unless the accused shows otherwise.[9]

Effect of Consent
Once consent is given there is no future expectation of privacy.[10]

invalidating consent
A threat to get a warrant when the officer knows there is no grounds to do so can invalidate consent to search.[11] However, it is not necessary the police ever let the accused know that there is no grounds to search the item for which consent is sought.[12]

Coercion
Coercion will exist where there are threats made should the accused refuse to give consent.[13]

Honest But Mistaken Belief in Consent
Police are not permitted to justify a warrantless search on the basis that they had a mistaken belief in consent.[14]

Burden
The burden is upon the Crown to prove consent on a balance of probabilities.[15]

  1. ↑ R v Chang, 2003 ABCA 293 (CanLII), per curiam at para 28
  2. ↑ R v Wills, 1992 CanLII 2780 (ON CA), (1992), 70 CCC (3d) 529, per Doherty JA at 69
    R v Cooper, 2011 ABQB 17 (CanLII), per Kenny J at paras 35-41
    R v Borden 1994 CanLII 63, [1994] 3 SCR 145, per Iacobucci J
    R v Rutten, 2006 SKCA 17 (CanLII), per Smith JA at para 35
  3. ↑ R v Bergauer-Free 2009 ONCA 610 (CanLII), per Moldaver JA at para 57
    See also R v Goldman, 1979 CanLII 60 (SCC), [1980] 1 SCR 976, per Mclntyre J at p. 1005
  4. ↑ Wills, supra
    R v Borden 1994 CanLII 63 (S.C.C.), (1994), 33 C.R. (4th) 147, per Iacobucci J at 158
    R v SS, 2008 ONCA 578 (CanLII), per Doherty JA at paras 48, 52
    c.f. R v Lupien, 1995 CanLII 5211 (QC CA), (1995) 68 QAC 253 (CA), per Rothman JA
    R v Blackstock, 1997 CanLII 14495 (ON CA), (1997) 10 CR 5th 385 (ONCA), per curiam
    US v Drayton 536 US 194 (2002) - police need not inform of right as long as there was no coercion, intimidation, or confrontation
  5. ↑ R v Borden, 1994 CanLII 63 (SCC), [1994] 3 SCR 145, per Iacobucci J
  6. ↑ R v Rutten 2006 SKCA 17 (CanLII), per Smith JA at paras 39 to 44, the court stated that permission to enter to search a dwelling must include information on the person's right to refuse
  7. ↑ R v Lewis (1998) 122 CCC 3d 481 (ONCA), 1998 CanLII 7116 (ON CA), per Doherty JA
  8. ↑ R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265, per Lamer J
  9. ↑ R v Williams, 1992 CanLII 295 (BC SC), (1992) 76 CCC 385 (BCSC), per Melnick J
    R v Deprez (1994) 95 CCC 29 (MBCA), 1994 CanLII 16612 (MB CA), per Scott CJ
  10. ↑ R v Arp [1998] 3 SCR 339, 1998 CanLII 769 (SCC), per Cory J at 90
  11. ↑ R v O’Connor, 2002 CanLII 3540 (ON CA), per O'Connor ACJ at paras 74, 75
  12. ↑ O'Connor, ibid. at para 75
  13. ↑ R v Bergauer-Free, 2009 ONCA 610 (CanLII), per Moldaver JA - police threaten to bring in the canine unit should consent be refused. This was found to be "colorably lawful coercion"
  14. ↑ Wills, supra (“where the Crown relies on the consent of an individual as authorization for a seizure and fails to establish the validity of that consent, then the seizure cannot be brought within s. 8 based upon the police officer’s perception of the validity of the consent”)
    R v Reeves, 2017 ONCA 365 (CanLII), per LaForme JA at para 71
  15. ↑ Wills, supra at p. 353
    R v Colson, 2008 ONCA 21 (CanLII), 88 O.R. (3d) 752, per Blair JA, at para 23 leave denied [2008] S.C.C.A. No. 101
    R v Simon, 2008 ONCA 578 (CanLII), per Doherty JA at para 49
    Rutten, supra at para 36

Consent to Enter Residence to Arrest

Consent entry for the purpose of arrest is an exception to the rule from R v Feeney, 1997 CanLII 342 (SCC), per Sopinka J requiring a "Feeney warrant" to enter a residence for arrest.[1]

When executing a warrant, police may enter premises by consent where there exists:[2]

  1. it must be given by someone who has a privacy interest in the premises
  2. the consent must be an informed one
  1. ↑ Tymkin v Ewatski et al., 2014 MBCA 4 (CanLII), per Monnin JA
  2. ↑ R v RMJT, 2014 MBCA 36 (CanLII), per Cameron JA, at para 46
    Tymkin v Ewatski at para 89

Consent to Enter Residence to Search

Consent to search a residence is guided by the "reasonable expectation of privacy".[1] A person who does not possess an expectation of privacy may not consent to a search.[2]

The relationship between the consenter and the suspect is not determinative.[3]

A parent can consent to a search of a child's portion of a residence as long as there were no restrictions on the parent's access to the zone of privacy.[4]

  1. ↑ R v RMJT, 2014 MBCA 36 (CanLII), per Cameron JA, at para 48
  2. ↑ RMJT, ibid. at para 48
  3. ↑ RMJT, ibid. at para 48
  4. ↑ RMJT, ibid. at para 48

Implied Licence

The "occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property” [1] The licence "ends at the door of the dwelling."[2] Privacy rights are waived unless there is a clear expression of intent rebutting this.[3]

This consent extends only insofar as it permits a person to conveniently communicate with the occupant and the activities reasonably associated with this purpose.[4] It does not extend to police approaching and knocking at the door for the purpose of collecting evidence against the occupant.[5]

Entering on a person's driveway, where in plainview of the public will be included in the licence.[6] But this was found impermissible for an attached garage.[7]

A business open to the public will also provide a similar licence for police to enter.[8]

Consent to enter a home does not include a blanket right to search the whole house including the basement.[9]

What constitutes implied licence "must be analyzed in [its] context".[10]

When "an invitee’s purpose changes from lawful to unlawful while on the premises, they become a trespasser.”[11]

  1. ↑ R v Evans, [1996] 1 SCR 8, 1996 CanLII 248 (SCC), per Sopinka J at para 13 , citing R v Tricker 1995 CanLII 1268 (ON CA), (1995), 21 O.R. (3d) 575, per Galligan JA, at p. 579
    See also Plain View Search and Seizure
  2. ↑ Tricker, ibid. at para 12
  3. ↑ Evans at 13
  4. ↑ Evans, supra at para 15
  5. ↑ Evans, supra at para 16, 18, 20, 21
  6. ↑ R v Lotozky, 2006 CanLII 21041 (ON CA), (2006), 210 CCC (3d) 509, per Rosenberg JA - police observed impaired driver exiting his car in the driveway
  7. ↑ R v Noerenberg, 1997 CanLII 12354 (ON SC), [1997] O.J. No. 4628 (Ont. Gen. Div.), per Lally J
    R v Maciel, 2003 CanLII 32396 (ON CA), (2003), 33 M.V.R. (4th) 152, per curiam - attached garage different from driveway
    R v Clements, 2007 ABPC 220 (CanLII), [2007] A.J. No. 1024 (ABPC), per Fraser J
    See also R v Belnavis, [1997] 3 SCR 341, 1997 CanLII 320 (SCC), per Cory J - stating attached garage including in privacy of home
  8. ↑ R v Fitt, 1995 CanLII 4342 (NS CA), per Hallett JA aff'd [1996] 1 SCR 70, 1996 CanLII 251 (SCC), per Lamer CJ
    R v Spindloe, 2001 SKCA 58 (CanLII), per Jackson JA
  9. ↑ R v Smith, 1998 ABCA 418 (CanLII), (1998), 128 CCC (3d) 62 (ABCA), per Conrad JA
  10. ↑ Evans, supra
  11. ↑ R v Nobile (2006), 75 W.C.B. (2d) 581 (Ont. S.C.)(*no CanLII links) , at para 53

Authority to Consent and Third Party Consent

A third party cannot consent or waive a suspect's rights under s. 8 of the Charter.[1]

Third party consent by a wife or parent requires that the police also have diffident grounds to get a search warrant at the time.[2]

Mistaken Belief in Authority
For all searches, the police must have a subjective belief that they have consented to conduct the search and it must be an objectively reasonable belief in the circumstances. Where the police wrongly relied upon consent of a third party, the reasonableness of their belief will go to section 24(2) analysis.[3]

Issues of consent seizure will most often be dealt with by way of warrantless seizure under s. 489.[4]

  1. ↑ R v Reeves, 2018 SCC 56 (CanLII), per Karakatsanis J
    R v Cole, 2012 SCC 53 (CanLII), per Fish J
  2. ↑ R v Barrett, [1995] O.J. No. 920 (Ont. C.J.)(*no CanLII links)
  3. ↑ R v DiPalma, 2008 BCCA 342 (CanLII), per Smith JA
  4. ↑ R v RMJT, 2014 MBCA 36 (CanLII), per Cameronn JA at para 29

Joint Residency

An "authorized occupant" of a residence may give consent to a search.[1] This will usually include the homeowner. [2]

A parent of a suspect can usually consent to searches of the familial home where the suspect "does not expect restrictions on the access of others to those spaces".[3]

A landlord or neighbour does not constitute an "authorized occupant".[4]

Guests can have the authority to consent to a search of a home, however, the authorization can be revoked by the homeowner.[5]

The seizure of property "under mistaken authority is not necessarily fatal where authority otherwise exits".[6]

Consent of Accused's Parents
There will not necessarily be a violation of s. 8 where a parent consented to the search of the youth's bedroom.[7] Parents who exercise control over a child's room or property may remove any expectation of privacy.[8]

  1. ↑ R v Duarte (1987) 38 CCC (3d) 1 (ONCA), 1987 CanLII 175 (ON CA), per Cory JA, at p. 11
    R v Currie 2008 ABCA 374 (CanLII), per Côté JA - resident gave consent to search house containing items of non-resident accused
  2. ↑ R v Smith 1998 ABCA 418 (CanLII), per Conrad JA at para 5
  3. ↑ Reeves, ibid. at para 47
  4. ↑ R v Mercer, 1992 CanLII 7729 (ON CA), (1992) 70 CCC 180 (ONCA), per Arbour JA - landlord
    R v Blinch (1993) 83 CCC 3d 158 (BCCA), 1993 CanLII 1433 (BC CA), per Rowles JA
  5. ↑ R v Thomas 1991 CanLII 2736 (NL CA), per Goodridge CJ aff'd at SCC
  6. ↑ R v RMJT, 2014 MBCA 36 (CanLII), per Cameron JA at para 64
  7. ↑ R v F.(D.M.), 1999 ABCA 267 (CanLII), (1999), 139 CCC (3d) 144 (Alta.C.A.),
    R v Figuerora [2002] O.J. No. 3138 (Ont. S.C.J.)(*no CanLII links)
    R v Scheck, 2002 BCSC 1046 (CanLII), [2002] BCJ No. 1671 (B.C.S.C.)
  8. ↑ F(DM), supra

Computers

Police may not seize a device without a warrant that is jointly owned by multiple people unless they have the consent of all the owners.[1]


Employer Consent
An employer cannot provide consent to examine the contents of an employee's computer where they hold any reasonable expectation of privacy.[2]

  1. ↑ R v Reeves, 2018 SCC 56 (CanLII), per Karakatsanis J
  2. ↑ Cole, supra, at paras 74 to 79

Mandatory Consent

A court order, such as a probation order, can in certain circumstances require an offender to consent to random searches.[1]

  1. ↑ R v Unruh, 2012 SKCA 72 (CanLII), per Herauf JA

Consent by Organizations Holding Personal Information

Privacy of personal information within private companies is governed by the Personal Information Protection and Electronic Documents Act (PIPEDA).

Section 7(3) permits the disclosure of personal information without the subject's knowledge or consent:

Disclosure without knowledge or consent
(3) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is
...

(c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that
(i) it suspects that the information relates to national security, the defence of Canada or the conduct of international affairs,
(ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law, or
(iii) the disclosure is requested for the purpose of administering any law of Canada or a province;

...

(d) made on the initiative of the organization to an investigative body, a government institution or a part of a government institution and the organization
(i) has reasonable grounds to believe that the information relates to a breach of an agreement or a contravention of the laws of Canada, a province or a foreign jurisdiction that has been, is being or is about to be committed, or
(ii) suspects that the information relates to national security, the defence of Canada or the conduct of international affairs;

...

(h.2) made by an investigative body and the disclosure is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province; ...


– PIPEDA

Under this section a peace officer may make a Law Enforcement Request (LER) requesting particular information of an accused person without their consent. A proper LER should identify the person requesting the information, what information is being requested, the purpose of the request for the information (presumably to obtain evidence to an offence). The organization is permitted but not required to provide the information requested.

Related: Disclosure

See Also

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