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2. The Use of Constraint: Search, Seizure and Arrest Powers

The police powers of search, seizure and arrest are some of the most important powers available to the state when investigating criminal activity. There is also considerable risk that they will violate fundamental rights, such as the right to privacy or freedom of movement. Specifically, the Charter protects against unreasonable searches and arrests. At the same time, searches may be crucial to the investigation or to preventing the commission of a crime. The use of such powers is therefore strictly controlled. In practice, much rests on a standard such as that of "honest and reasonable belief" that can be difficult to interpret. In class we will try to address some of the typical challenges of "getting it right" for the police, as well as shed light on what might be a citizen perspective on search, seizure and arrest. Although most of the cases involve the question of whether evidence obtained unlawfully ought to be excluded (and therefore emanate from people who are prosecuted), we need not concern ourselves with that aspect at this stage. What matters is that constitutional rights have been violated, and such rights are violated needless to say whether you are subsequently prosecuted or not as a result of evidence unlawfully obtained or an unlawful arrest.

There is a tension running through the system in terms of requiring the police to go before judges to obtain warrants and the needs of the police to occasionally operate quickly to be effective. The default rule is that one needs warrants for most searches and arrests. A warrant is a document that needs to be signed by a judge and that will have to be convinced that there are reasonable grounds to conduct a search or arrest the person in question. Although in the adversarial tradition the police is much more autonomous in their investigations than in the inquisitorial model, we can see elements of the 'due process' model at work here whereby a degree of judicial scrutiny is required at key moments in the investigative process in order to safeguard rights.
If an officer has no warrant, the arrest is governed by section 495. In such a case, an arrest will be lawful if the suspect has committed an indictable offence or if the officer believes on reasonable grounds, that he has committed or is about to commit an indictable offence or if he finds the suspect committing a criminal offence or if there are reasonable grounds to believe that the person is subject to a warrant of arrest. If those grounds are not present, then you may conclude that there was an unlawful detention, unless the case falls within the "investigative detention" scenario (see next session).

Given how relatively easy it is for the police to arrest without a warrant, one may wonder why that is not all that the police do. Indeed most arrests are without warrant, but there are also clearly cases where a warrant would be required. It may be, for example, that the police know they want to arrest someone but do not know his whereabouts. Having a warrant in such a case is simply a way of more effectively tracking down that person by making it known that he is sought to be arrested. In such a scenario, the conditions required to obtain a warrant are found in section 524(1). The main ground for our purposes is that the the judge is satisfied that there are reasonable grounds that the individual in question "has committed an indictable offence". Also, the need for a warrant is particularly acute if the person one seeks to arrest is in a dwelling, as seen in the Feeney case, given the increased privacy expectation post-Charter (except in cases of 'hot pursuit'). In such a case, you cannot simply invoke the fact that you have a normal arrest warrant to enter the premises, you need a special "Feeney" warrant that anticipates the need to go on premises.

When it comes to searches, the first question is whether there is an expectation of privacy. If you are walking in the street and the police observe you doing so, then there is no particular expectation of privacy. On the other hand the content of your pockets or what is in your car have a relatively higher expectation of privacy. In the next session, we will further inquire the extent to which there is an expectation of privacy in relation to various aspects of everyday life, particularly in the home.

If section 8 is potentially impinged because there is a privacy interest, then one should a priori seek a warrant, especially to search a vehicle or premises. In order to sign a warrant a judge must be convinced that there are reasonable and probable grounds for believing in the prior existence of facts justifying the search. The warrant is a priori a warrant only to search certain things that are mentioned in the warrant. If the police say they are searching for drugs but fail to disclose that they are also searching for guns then they may be violating section 8. You only have legal authority to search for what you asked and obtained authorization to search in the first place. The Supreme Court  has held, moreover, that there is a presumption that warrantless searches are unreasonable (see Evans in the next session; also Hunter v. Southam)

However, there are also a few exceptions to the rule that one should always obtain a warrant.

The most important is that in certain circumstances it would simply not be practical to obtain a warrant, although one will want to be careful to not allow the police to always or routinely claim that going before a judge was an inconvenience. A police officer may exercise the search powers that he would normally be able to exercise under a warrant if "exigent circumstances" make it impractical to obtain a warrant. Exigent circumstances would include, for example,  "imminent danger of the loss, removal, destruction or disappearance of the evidence." It may be easier to find exigent circumstances when it comes to cars or boats, for example, both because the privacy expectation is a bit less than a dwelling, and because they are mobile and therefore more likely to flee (a house, by comparison, is going nowhere).

However, in such a case, the reasons for obtaining a warrant must exist. The idea is that the police is only allowed to do in situations of emergency what it can demonstrate it would have been allowed to do in normal circumstances. Moreover, the power to search without warrant must exist, either in a given Statute or in common law (of example the Narcotics Control Act). There is no general power to search without warrant. The Courts will look not only at whether the search was executed reasonably but also whether the power to search without warrant, if it exists, is itself reasonable. In the Kokesch case (next session), for example, the Supreme Court found that a "perimeter search" based on a mere suspicion did not satisfy the threshold for a warrantless search. What is fundamentally at stake in such cases is that the police should pause and obtain a warrant, not take a shortcut and conduct a search without the presence of "exigent circumstances."

There are also a number of exceptions that are tied to the exercise of lawful powers. In that category, one may include the exception to the need to obtain a search warrant if a search incidental to arrest, even when the arrest is without warrant. This makes sense if the police have already independently satisfied the threshold to proceed to an arrest. Another exception is the "plain view" doctrine. Assuming the police is in good faith and did not forget to mention that they were looking for certain things in their request for a search warrant (which would be a case of overstepping their authority if they then find that thing), it may just be that the police will, in the course of a search, stumble upon evidence of a crime. Because it is not something that the police is looking for as such, it would of course have to be something that was quite clearly evidence of a crime (e.g.: drugs left on the kitchen table), not something that would require extensive analysis.
Class Preparation:
Privacy Interest: 
  • R. v. Spencer, 2014 SCC 43 (headnote and section on "Reasonable Expectation of Privacy")
  • R. v. Mellenthin, [1992] 3 S.C.R. 615 (headnote only)
  • R. v. Feeney, [1997] 2 S.C.R. 13 (headnote only, excluding parts referring to access to counsel).
  • R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 (headnote only)
  • R. v. Aucoin, 2012 SCC 66 (headnote only, ignore parts on exclusion of evidence)
  • R. v. MacDonald, 2014 SCC 3 (headnote, only part on searching).

Arrest and search incidental to arrest: