Warrantless Searches
| Author | Susanne Boucher & Kenneth Landa |
| Pages | 220-261 |
1Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97 (S.C.C.).
2 There are exceptions to the general presumption of unreasonableness of warrant-
less searches: e.g., a search conducted incident to arrest is not presumed to be
searches conducted by school officials without warrant are not prima facie unrea-
sonable: see R. v. M.(M.R.) (1998), 129 C.C.C. (3d) 361 (S.C.C.) at para. 50.
3R. v. Dyment (1988), 45 C.C.C. (3d) 244 (S.C.C.) at 257.
220
Most warrantless searches and seizures are prima facie unreasonable; that is,
once the applicant for Charter relief has demonstrated that the state conduct-
ed a search or seizure without a warrant, the Crown has the burden of show-
ing that the search was, in fact, reasonable,1unless the search power is a
recognized exception to the presumption of unreasonableness.2
This chapter examines four of the warrantless search and seizure pow-
ers the police are authorized to use at common law: searches on consent,
searches conducted incidental to arrest, searches conducted incidental to
investigative detentions, and seizures authorized under the plain view doc-
trine. The chapter will address the threshold tests to meet in determining
whether the search or seizure was authorized by the relevant common law
powers and the constitutional implications of the use of those powers.
A. CONSENT SEARCHES
The essence of a search or seizure is the non-consensual inference with pri-
vacy rights by the government.3Therefore, if a person consents, there is no
chapter 8
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Warrantless Searches
search or seizure to be scrutinized under section 8 of the Charter.4The
recognition that individuals can, in appropriate circumstances, consent to
waive their Charter rights reinforces the principle of individual autonomy
that underlies the rights guaranteed by the Charter.5At common law, con-
sensual searches were tolerated by the courts as a “non-actionable intru-
sion” and as an aspect of the doctrine of volenti fit injuria: “One who has
invited or assented to an act being done towards him cannot, when he suf-
fers from it, complain of it as a wrong.”6
1) Informed Consent
Although consent can provide the legal authority for conducting (what
would otherwise be termed) a search or seizure, it is important to ensure
that consent was genuine. As Doherty J.A. explained in R. v. Wills:7
The danger to constitutionally protected rights implicit in the equating of
consent with acquiescence or compliance is self-evident and does not
require detailed elaboration. When the police rely on the consent of an
individual as their authority for taking something, care must be taken to
ensure that the consent was real. Otherwise, consent becomes a euphemism
for failure to object or resist, and an inducement to the police to circum-
vent established limitation on their investigative powers by reliance on
uninformed and sometimes situationally compelled acquiescence in or
compliance with police requests. . . .” [emphasis added]8
In order to establish a valid consent, the Crown bears the onus of
demonstrating that the person waived his or her rights with “full knowledge
of the existence of the right and an appreciation of the consequence of waiv-
ing that right.”9In simple terms, the consent must be “informed.” As
Iacobucci J. explained in R. v. Borden:10
In order for a waiver of the right to be secure against an unreasonable
seizure to be effective, the person purporting to consent must be possessed
of the requisite informational foundation for a true relinquishment of the
4R. v. Wills (1992), 70 C.C.C. (3d) 529 (Ont. C.A.) [Wills] at 540; Illinois v. Rodriguez,
5Wills, above note 4 at 541; R. v. Turpin (1989), 48 C.C.C. (3d) 8 (S.C.C.) at 23.
6 The Law Reform Commission of Canada, “Police Powers — Search and Seizure in
Criminal Law Enforcement,” Working Paper 30 (1983) 126 at 52.
7Wills, above note 4.
8Ibid. at 541.
9Ibid.; R. v. Neilsen (1988), 43 C.C.C. (3d) 548 (Sask. C.A.).
10 R. v. Borden (1994), 92 C.C.C. (3d) 404 (S.C.C.) [Borden].
Warrantless Searches • 221
right. A right to choose requires not only the volition to prefer one option
over another, but also sufficient available information to make the prefer-
ence meaningful. This is equally true whether the individual is choosing
to forego consultation with counsel or choosing to relinquish to the police
something which they otherwise have no right to take.11
In R. v. Wills,12 Doherty J.A. set out the specific criteria that must be estab-
lished in order to demonstrate a valid consent:
i. there was a consent, express or implied;
ii. the giver of the consent had the authority to give the consent in question;
iii. the consent was voluntary in the sense that that word is used in Gold-
man, supra, and was not the product of police oppression, coercion or
other external conduct which negated the freedom to choose whether
or not to allow the police to pursue the course of conduct requested;
iv. the giver of the consent was aware of the nature of police conduct to
which he or she was being asked to consent;
v. the giver of the consent was aware of his or her right to refuse to per-
mit the police to engage in the conduct requested,13 and
vi. the giver of the consent was aware of the potential consequences of
giving the consent. [footnotes added]14
In order to show that the accused’s consent was involuntary, and there-
fore fails to satisfy the third criterion in the preceding list, it is necessary to
demonstrate coercion or oppression of the nature and magnitude identified
by the Supreme Court in R. v. Goldman.15 As Bayda J.A. held in R. v. Sewell:16
[T]he Wills requirement (iii) contemplates an oppression or coercion of a
magnitude and kind different from that inherent in every arbitrary deten-
11 Ibid. at 417.
12 Wills, above note 4.
13 See also R. v. Tang, 2001 BCCA 165 (13 February 2001) where the failure of a
police officer to inform a detainee that he could refuse to be searched, even though
the officer advised him charges could result if contraband was found, rendered the
consent to search invalid. The Ontario Court of Appeal in R. v. Lewis (1998), 122
C.C.C. (3d) 481 at para. 12, however, pointed out that the failure of the police to
inform a person of the option to refuse consent to search would not on its own
render a search invalid — rather, failure to inform a person of the ability to refuse
to consent could render the consent invalid. If the consent was the legal basis
upon which the officers sought to justify their search and if a consent were invalid
for reasons of the detainee not being informed of the ability to refuse, the legal
justification for the search (the consent) would accordingly be absent.
14 Wills, above note 4 at 546.
15 R. v. Goldman (1979), 51 C.C.C. (2d) 1 (S.C.C.).
16 R. v. Sewell (2003), 175 C.C.C. (3d) 242 (Sask. C.A.) [Sewell].
222 • Understanding Section 8: Search, Seizure, and the Canadian Constitution
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