Difference between revisions of "Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX)"

As a general rule, a search of premises must be based on reasonable grounds. If a search is conducted merely on a suspicion, the search will likely constitute a violation of section 8 of the Charter. In the case of ''[https://www.canlii.org/en/ca/scc/doc/1990/1990canlii55/1990canlii55.html?searchUrlHash=AAAAAQALciB2IGtva2VzY2gAAAAAAQ&resultIndex=1 R v Kokesch]'' [1990] 3 SCR 3, the search was held to be unreasonable even though a warrant had been issued, because the basis for the warrant was unreasonable and an unlawful search of the premises, based merely on suspicion.  As a result, the search warrant was struck down and the search was deemed warrantless, and all items seized were excluded from the trial.  

When assessing the ITO, first determine if the affidavits filed in support of the warrant establish reasonable grounds for searching the location, based on the contents of the ITO (assuming the contents are true).  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 authorizing justice.

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 ''[https://www.canlii.org/en/ca/scc/doc/1984/1984canlii33/1984canlii33.html?searchUrlHash=AAAAAQAQaHVudGVyIHYgc291dGhhbQAAAAAB&resultIndex=1 Hunter v Southam Inc]'', [1984], 2 SCR 145. The Supreme Court, however, has recognized 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 a specific address during the time the police arrive at the occupant’s address then the occupant should point out to the police that the warrant is either not for the occupant’s 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.