Henry Waldock
Last updated: 2018.08.03
- Section 8 of the Charter protects an “expectation of privacy”
- if the location or circumstances suggest no expectation of privacy,
then the search is lawful
Attending a residence for the purpose only of communicating with the occupants is not a search. But sniffing the air, or examining vehicles on the property is.
Police officers, like everyone else, enjoy an implied invitation to enter on private residential property to speak with the occupants. However, the occupants can terminate this invitation by telling you to leave.
When you ask a suspect or a witness to permit you to search a place where there is an expectation of privacy, you must investigate whether the person has authority to permit you to search there, and inform the person so that he or she can make up his or her own mind.
| Voluntary |
Suspect/witness can say "no"
without fear of negative consequences like getting arrested. |
| Informed |
Suspect/witness knows what you
intend to do - where you're going to look, how much you're going
to search, and generally what you're looking for. |
| Revokable |
Suspect/witness can revoke consent
at any time, and knows it. |
| Authorized |
Suspect/witness has authority to
access the place you want to search. |
If you rely upon a consent given by a person other than your suspect, you should investigate whether that person has authority to permit you to search in that place. DiPalma 2008 BCCA 342
Where the suspect "abandons" his privacy in something, police may seize it without affecting his s.8 rights. For example, garbage set out for pickup, where the general public can access it is abandoned, even if the garbage can remains on private property. (Patrick 2009 SCC 17).
Where undercover officers persuade a suspect to test gum, and offer him a dixie cup into which to spit the used gum, they persuade, but do not compel, the suspect to abandon his privacy in the gum. (Delaa 2009 ABCA 179)
The common law identified a power to seize things (but not to search for them)
- you may seize evidence that you can see, if you know it's evidence of
an offence
- if you are lawfully in or lawfully searching the place where you see
them
- you came across the evidence inadvertently
Parliament created a simpler power in s.489(2). See if you can spot the difference:
- you may seize evidence that you can see, if you know it's evidence of
an offence
- if you are lawfully in or lawfully searching the place where you see
them
"Lawfully in a place" - this requires judicial pre-authorization, consent from a person who has authority to give it, exigent circumstances justification to enter, or some other lawful reason to be in the place.
But it's simpler than the common law power. Warren, 2017 MBCA 106
There are many lawful authorities to search. For example:
- Criminal Code - s.492
- when executing a search warrant, an officer may seize explosives
on suspicion that someone intends to use them for a criminal purpose.
- Corrections Act – telephones, letters and cells – see Prisoner’s
Phone Calls
- Coroners Acts: B.C.
s.15; Yukon
s.7; Saskatchewan
s.11-16; Ontario
s.16; Quebec
Chapter III; New
Brunswick s.9-10
Mr Reeves 2017 ONCA 365 stored child pornography on the computer he shared with his common-law. Their relationship broke down violently, and he was arrested. She complained to police about images she noticed on the computer. With written consent, she gave the computer to a police officer. Police failed to report their receipt of the computer. The court proceeded on the basis that the police seized it, and found that this failure
Mr Puyenbroek, 2007 ONCA 824 drove home drunk. Along the way he struck two pedestrians, injuring them. A couple hours later, the investigating police officers arrived at the door of his house. (The trial judge called this "hot pursuit", but the appeal court said it wasn't.) The officers told his wife they wanted to speak with him about a car accident. It was clear his wife knew something about it. She waved the officers in, and led them to the bedroom where he lay. But the officers never told her she could refuse, or change her mind. The court said this was not sufficient for a lawful consent to search. The judges reaffirmed the very high standard it required for consent in Wills (1992 Ont. C.A.).
Mr Wills
(1992) 12 C.R. (4th) 58 (Ont CA) drove his car and crashed,
killing two people. Attending officers made him blow into a
roadside screening device, and he passed, indicating his blood-alcohol
level was .05 or less. At the detachment, they asked him if he
would provide a sample into a Breathalyzer. The officer honestly
believed that this would give Wills better evidence to provide to the
insurance company, but he blew .12. The RSD was improperly
calibrated. Held: Wills didn’t really know what he was consenting
to. The Ontario Court of Appeal set a stringent 6-point test to
determine whether consent was validly given:
(i) consent may be express or implied consent;
(ii) the giver of the consent must have the authority to give the consent in question;
(iii) the consent must be voluntary - no threats or coercion used to get it;
(iv) the giver of the consent must be aware of the nature of the police conduct to which he or she is being asked to consent;
(v) the giver of the consent must be aware of the right to refuse to permit the police to engage in the conduct requested, and
(vi) the giver of the consent
must be aware of the potential consequences of giving the consent.
Police arrested Mr Erickson
(2003 BCCA 693) for assaulting his wife. They seized his
keys. Erickson asked the police to let his parents into the house
to take his Rotweiler. Police told him that they would have to
accompany the parents to achieve this. Erickson agreed to
this. Police wanted to preserve the scene, and were actively
considering getting a search warrant. Police officers “kept their
eyes open”. An officer observed a cat in the house.
Erickson’s mother said it didn’t belong there. The officer pursued
the cat into the basement and discovered a grow op. Held: The
consent Erickson gave to enter the house was valid. In the
circumstances it was reasonable for the police to restrict entry and
hence preserve evidence until a search in connection with the assault
was authorized by a search warrant, by controlling use of the
keys. The British Columbia Court of Appeal sidestepped Wills, and
set a less stringent test for consent.
A police officer near Valemont pulled over Mr Bottle
(2004 BCSC 1667) for minor traffic violations. After dealing with
those, the officer told him he was free to go, but asked whether he
would mind answering "a few questions". Bottle didn't mind, but
his answers raised some suspicions. The officer asked if he would
mind the police searching his car. Bottle said "go ahead".
The officer produced a consent form, which Mr Bottle signed. At
trial, Mr Bottle said he understood the form, and
therefore the court found that consent was proved.
Police officers responding to a 911 call of a possible B&E rang a
doorbell, and Mr Groat
2006 BCCA 26 appeared at the door, surrounded by a distinctive smell of
growing marijuana. They talked with him about the 911 call, but
then asked him about the smell. He said he just smoked a marijuana
cigarette for medicinal purposes. Then he said he didn't know what
was in the basement; then he said he did, and it was his
responsibility. Eventually, they wrote a brief consent in a
notebook, which he signed. It made clear that that he could revoke
his consent at any time. The trial judge convicted him. On
appeal, the issues included whether the consent was voluntary, and
whether the police adequately recorded what occurred. Although an
audiotape of the conversations with the suspect would have been
better, the court upheld the conviction.
The Crown need prove that the suspect consented to a search on a balance of probabilities, not beyond a reasonable doubt (like statements). R. v. Colson, 2008 ONCA 21.
Mr Perello
(2005 SKCA 8) drove his camper a bit too fast. Police officers
pulled him over and asked him if they could "have a look" inside.
The partially recorded conversation went something like this:
The police did much more than "take a look". They didn't tell him what the consequences of the search would be. They searched thoroughly, and found $55,000, psilocybin, marijuana seeds, and a (very clean) modified sewage tank. The court found the consent adequate, but the tape-recording of the conversation made a big difference. The court figured that Perello, being the sole occupant of the car, would know what would happen if the police found his contraband.
Police merely suspected Mr Nicholas
(2004 Ont CA) of being the man who raped several women. Using a
carefully prepared request, they asked him - on tape - if he would give
DNA samples. He consented. When the DNA matched, he
complained that the police breached his rights. The Ontario Court
of Appeal approved of the police procedure. (In a similar case, so
did the B.C. C.A. Osmond
2012 BCCA 382)
A task force formed to investigate a series of brutal rapes. A
tipster suggested Mr Simon,
2008 ONCA 578 might be responsible. Officers of the task force
watched him steal a van, so they advised regular officers, who arrested
him for the theft, and interviewed him about it.
The task force members then asked him to provide a DNA sample to clear
him of his involvement in the rapes. But they forgot to review
with him his s.10(a) and (b) rights with respect to the rape. The
DNA matched.
The court found that there was a breach of s.10(b). What saved the
officers in this case was a well-drafted consent form, which included:
Because the consent form raised the right to counsel again, and because the officers offered him access to counsel again, the court found that their breach of s.10(b) was too minor to affect the admissibility of the DNA samples.
You might want to review what you wrote in your "voluntary consent" forms, to cover right to counsel.
In Karas
2007 ABCA 362, the court found that the analysis to determine whether
a consent to give DNA was given, the court applied the same analysis
as for statements. Even though the officer lied about
whether Karas was a suspect, the officer offered no quid
pro quo, and the suspect's right to refuse was clearly
explained. The samples were admitted.
The conclusion seems obvious. But can you retrieve DNA or
fingerprints from an old investigation which did not result in a
conviction? It think "it depends"... on the how you obtained the
DNA or fingerprints (or whatever other evidence is important to
you). For example, if the DNA was obtained by a DNA warrant, s.487.08
prevents you from using it to investigate a different offence.
Evidence obtained by consent from the suspect may be used in a
subsequent investigation if the consent made it clear that the evidence
might be used for more than the investigation being made at the time.
Police investigating two sexual assaults arrested Mr Borden
[1994] 3 S.C.R. 145 for only one of them. They asked him to
provide DNA for the purpose of the one investigation that they told him
about. He consented. They didn't tell him they'd use the DNA
for the purposes of investigating the other sexual assault. The
DNA matched DNA found in both investigations. The Supreme Court
found that it was admissible only for the one which they told Mr Borden
about. With respect to the other, it violated his expectations of
privacy.
Police got a warrant to search Mr Fawthrop's [(2002 Ont CA) 166 C.C.C. (3d) 97, 4 C.R. (6th) 52] residence for several photographs. They found large quantities of child porn, which they seized. Because there wasn't enough evidence to show that they located this material inadvertently, the court excluded it.
Spindloe
– useful review of plain view doctrine.
An officer at a traffic stop using a high-power flashlight to look into
tinted windows does not see what is in "plain view" Grunwald,
2010 BCCA 288; or the officer may check for risks to his or her safety.
Diamond,
2015 NLCA 60 affirmed 2016
SCC 46.
Knocking at the door of a private residence for the purposes of sniffing the air in the residence for the presence of drugs is a warrantless search. Evans [1996] 1 S.C.R. 8 (S.C.C.).
Going into a residence for the purposes of arrest requires a warrant. Feeney, [1997] 2 S.C.R. 13 (S.C.C.).
Knocking at the door for the purposes of communicating with the occupants about an investigation is not a search. LeClaire , 2005 NSCA 165 (N.S.C.A.)
Police were investigating an alleged shooting in Mr Duong's 2002 BCCA 43 neighborhood. When they knocked on his door, they smelled growing marijuana. This was not an unlawful search.
Stepping onto a driveway to investigate an allegation of an impaired driver in a car parked on that driveway was found not to exceed the implied invitation onto property. But the court found also that such an implied licence can be withdrawn by asking the police officer to leave. R. v. Lotozky 2006 Ont C.A. Similarly, knocking on the door of a residence (Fowler 2006 NBCA 90) to make inquiries about a criminal offence seems to differ from knocking on a front door for the purposes of collecting the smell of marijuana against the occupants. Evans
Cst MacDonald got a report of a possible impaired driver, and found a car matching the report. He tried to pull it over, but the driver, Mr Halloran 2007 BCSC 1425 kept going until he got to his driveway. Then he tried to walk into his house before the officer stopped him. Was the officer allowed onto his property, or was Mr Halloran "home free"? The court found that the fact that the driver did not stop when signalled to do so vitiated his expectation of privacy on his property. The judge didn't say wether the officer would have been justified in following the suspect into his house.