Pre-trial Criminal Procedure – Search and Seizure

Chapter 4: Pre-trial Criminal Procedure – Search and Seizure

Overview

  • Presentation Prepared by: Stewart Callioux, MacEwan University

  • Source: 2023 McGraw Hill Limited, Seventh Edition, Criminal Law and the Canadian Criminal Code.

Powers to Search

Authority to Search

  • Can originate from two primary sources:

    • Statutory Law: Examples include:

    • Criminal Code of Canada

    • Controlled Drugs and Substances Act

    • I Common Law

Powers of Search

  • Relationship to Powers of Arrest:

    • Powers of search are directly connected to powers of arrest.

    • Implications of search powers extend to:

    • Persons

    • Private dwellings

    • Vehicles

    • Receptacles

Definitions

What is a Search?

  • Definition:

    • To go over, to look through, to find something.

  • Characteristics of a Search:

    • Must be organized, systematic, and thorough.

    • Involves examination of:

    • House

    • Building

    • Land

    • Person

    • Vehicle

  • Purpose of a Search:

    • To discover illicit or stolen property.

    • To uncover evidence of guilt.

    • Applicable for both criminal and civil court purposes.

What is a Seizure?

  • Definition:

    • “The taking of a thing from a person by a public authority without that person’s consent.” (R. v. Dyment 1988 SCR)

  • Key Issue:

    • Not about property rights, but whether the seizure violates the individual's right to privacy.

Constitutional Framework

Section 8 of the Charter

  • Rights Provided:

    • Everyone has the right to be secure against unreasonable search or seizure.

    • Must be authorized by law.

    • The law itself must be reasonable.

    • Searches must be carried out in a reasonable manner.

  • Implications:

    • Constrains government actions that could infringe on this right.

Search Incident to Lawful Arrest

Common Law: Peace Officer

  • Authorities include:

    • Securing evidence.

    • Preventing escape.

    • Ensuring the safety of both accused and police officers.

Common Law: Citizen

  • A citizen can search a person incident to a lawful arrest.

  • Case Example: R. v. Lerke (1986) AB CA

    • Individual was arrested for re-entering a tavern without proper ID (Breach of the Liquor Control Act).

    • Tavern manager searched the accused’s jacket and discovered marijuana; charges for possession followed.

R v Lerke Findings

  • Search was deemed illegal; evidence was excluded under Section 24 due to violation of Charter rights.

  • Conditions for Reasonable Searches:

    • Prevent injury (weapons).

    • Seize and preserve evidence related to the offense.

    • If not for weapons, should wait for police; accused must be turned over without delay.

Search on Private Property

Historical Context

  • Police could arrest anyone based on reasonable grounds that the individual was at a specific location, including dwelling houses.

R. v. Feeney (1997 SCC)

  • Landmark ruling: Police cannot enter a dwelling without a warrant except in exigent circumstances.

Current Stance

  • Police can still enter private property (excluding dwelling houses) without a warrant for arrests if reasonable grounds support the belief that the individual is present.

  • Example: A person hiding in an outbuilding on a farm.

Search – Informed Consent

Definition of Informed Consent

  • A peace officer is permitted to search a person or place only when they receive informed consent.

    • Consent must be granted by an individual who understands their right to refuse.

  • Case Reference: (R. v. Mellenthin S.C.C.)

Conditions for Informed Consent

  • Key Elements:

    • Consent (expressed or implied).

    • Authority (giver of consent must have it).

    • Voluntary action.

    • Awareness of rights concerning refusal to consent.

    • Understanding the nature of police conduct.

    • An understanding of potential consequences, including the right to counsel.

Search – Exigent Circumstances

Common Law:

  • Officers may enter a dwelling without a warrant to protect life or prevent injury.

  • Key Criterion: Must reasonably suspect that entry is necessary to protect individuals.

    • Example: 911 hang-up calls (R. v. Godoy 1991 SCC).

  • Search confined to finding individuals in need of protection, not for items unrelated to that purpose (e.g., drugs).

Search Incident to Investigative Detention

Definition of Investigative Detention

  • Peace officers can perform a pat-down for weapons during investigative detention.

    • Requires reasonable grounds to believe safety is at risk.

  • Search Parameters: Only to find weapons; no invasive searches for soft items.

    • Case Reference: R. v. Mann S.C.C.

Charter Rights Notification

  • Officers must advise individuals of their rights under Sections 10(a) & 10(b) of the Charter.

Powers to Search - Section 487 General Search Warrants

Authority of Search Warrants

  • Definition:

    • A search warrant is a judicial order enabling police officers to search and seize.

  • Characteristics of Search Warrants:

    • Requires prior judicial authorization.

    • Must be granted on reasonable grounds and sworn under oath.

Conditions for Search with a Warrant

  • Cannot be a “fishing expedition”; must have reasonable probability or belief.

    • Case Reference: R v Debot.

Execution of Search Warrants

Essential Requirements:

  • Must specify:

    • Place to be searched (building, place, or receptacle).

    • Owner or occupier identification.

    • Accused’s name.

    • Alleged offence and evidence being sought.

Seizure Conditions

  • Evidence can be seized if there are reasonable grounds that it was obtained or used in committing an offense.

  • Mere suspicion is insufficient.

  • Warrant execution generally occurs during the day unless authorized for night.

Search – Plain View Seizure Doctrine

Definition of Plain View Seizure

  • Officers are permitted to seize items that are evidence of a crime or contraband when they are in plain sight.

  • Three Conditions for Plain View Seizure:

    • Item must be lawfully placed.

    • Evidence discovered inadvertently.

    • Item must be immediately apparent as evidence or contraband.

Search of Human Body - Section 487.05

Bodily Substances for Testing

  • Substances included in testing procedures:

    • DNA

    • Hair

    • Blood

    • Skin cells (e.g., mouth swab).

Powers to Search - Telewarrants

Definition and Use of Telewarrants

  • Definition: A telewarrant is applied when it is impractical for police officers to appear in person.

  • Process involves:

    • Officer submits information via phone or other means.

    • Justice documents the information.

Search Without Warrant

Situational Authority Under Section 117.02

  • Applicable to scenarios involving:

    • Guns and weapons.

    • Exigent circumstances.

    • Individuals, vehicles, and locations outside of dwelling houses.

Additional Powers Under Section 487.11

Exigent Circumstances Defined

  • Allows for searches in situations where it is impractical to obtain a warrant due to risk of:

    • Loss of evidence.

    • Threats to safety.

Other Statutory Powers of Search/Seizure

Relevant Statutes

  • Drug Warrants: Section 11 of the CDSA.

  • Provincial Acts:

    • Gaming, Liquor, and Cannabis Act, Sections 106 & 107:

    • Warrantless searches for illegal transportation in vehicles.

    • Warrant-required searches for illegal sales.

Reasonable Expectation of Privacy

Charter Protection under Section 8

  • Protects individuals' reasonable expectation of privacy.

  • Relevant Case References:

    • R v Buhay

    • R v Patrick

    • R v Nolet

Feeney Warrants under Sections 529 & 529.1 C.C.C.

Key Findings from R. v. Feeney (1997 SCC)

  • Police must obtain a warrant prior to entering a dwelling house to arrest a suspect.

  • Even with an arrest warrant, a Feeney warrant is necessary for entry into the home.

  • Exceptions Include:

    • Hot pursuit as established in R. v. Macooh (1993 SCC).

Exclusion of Evidence - Section 24 of the Charter

Criteria for Exclusion

  • Subsection 24(2) Overview:

    • Admission of illegally obtained evidence can discredit the judicial system.

    • Factors include:

    • Evidence obtained via rights violation without justification.

    • Could lead to criminal charges (e.g., assault).

  • Remedies Under Section 24(1) Include:

    • Monetary awards.

    • Court-ordered stays of proceedings.

    • Possible civil lawsuits for violations.