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Difference between revisions of "Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX)"
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Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX) (view source)
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If the ITO on its face provides sufficient grounds to issue a warrant then the ITO must be compared to the information the police had available at the time they applied for the search warrant to assess whether the police made full, fair and frank disclosure of all material relevant to the request to search that location. The ITO as an ex-parte application should provide full fair and frank disclosure of all material facts relevant to the police investigation and knowledge of the place searched at the time the ITO was sworn. If there are important errors or omissions in the facts stated in the ITO then an application can be made to cross examine the affiant of the ITO as a sub-facial challenge to the ITO, in an effort to show either that had the true state of affairs been disclosed in the ITO, the warrant would not have been issued or that the police intentionally misled the authorising justice. See ''R v Garofoli'' [1990] 2 SCR 1421 and ''R v Araujo'' [2000] SCC 65 for more information on challenging search warrants. | If the ITO on its face provides sufficient grounds to issue a warrant then the ITO must be compared to the information the police had available at the time they applied for the search warrant to assess whether the police made full, fair and frank disclosure of all material relevant to the request to search that location. The ITO as an ex-parte application should provide full fair and frank disclosure of all material facts relevant to the police investigation and knowledge of the place searched at the time the ITO was sworn. If there are important errors or omissions in the facts stated in the ITO then an application can be made to cross examine the affiant of the ITO as a sub-facial challenge to the ITO, in an effort to show either that had the true state of affairs been disclosed in the ITO, the warrant would not have been issued or that the police intentionally misled the authorising justice. See ''R v Garofoli'' [1990] 2 SCR 1421 and ''R v Araujo'' [2000] SCC 65 for more information on challenging search warrants. | ||
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A warrantless search is presumed to be unreasonable and the onus is on the party seeking to justify the search and seizure to rebut this presumption: see ''Hunter v Southam Inc'', [1984], 2 SCR 145. The Supreme Court, however, has recognised several situations where authorities may conduct a search without warrants – for example where evidence of the offence is in plain view, or where the occupant of the premises has consented to the search. | |||
A search warrant authorizes the police to enter and search a specific location during a specific period of time and an occupant of the premises to be searched has a right to view the search warrant before the search is conducted. An occupant should check the address on the warrant and the time that the search is authorized to ensure that the warrant actually authorizes the search. Unless the warrant states that the police may enter and search your specific address during the time the police arrive at your address then the occupant should point out to the police that the warrant is either not for the occupants' address or has expired and may refuse police access to the residence. If the police nonetheless insist on entering the location and searching it, there is little practically speaking that can be done to stop the search while it is occurring, there may however be a civil right of action against them in trespass and a strong argument in any subsequent criminal case that any items seized should be excluded from evidence. | |||
=== 2. Search after valid arrest and search of person === | |||
At common law, upon a lawful arrest an officer acquires an attendant right to search for officer safety and evidence (see ''R v Klimchuk'', [1991) 67 CCC (3d) 385 (BCCA). (Please review the section on Lawful Arrest above). Where no arrest has taken place, a peace officer may also acquire a more limited right to search for officer safety. If an officer has reasonable grounds to suspect that an individual has a specific connection to a crime and detains that individual for further investigation, then incidental to this investigative detention, the officer may engage in a limited pat-down search confined in scope to locate weapons; see ''R v Mann'', [2004] 3 SCR 59. For more information on searches of the person, see ''R v Debot'' (1989), 52 CCC (3d) 193 (SCC), ''R v Ferris'', [1998] BCJ No 1415 (CA), and ''R v Simmons'' (1988), 45 CCC (3d) 296 (SCC). | |||