Warrantless Searches and Seizures

• Author: David Schermbrucker/Randy Schwartz/Mabel Lai/Nader Hasan
• Pages: 389-436



Warrantless

Searches and

Seizures

11

I. Overview ................................................ 

II. Powers Deriving from Statute and Common Law First Principles ... 

A. Consent Searches and Seizures ........................ 

B. Plain View Seizure ................................... 

C. Exigent Circumstances ............................... 

D. Abandonment ...................................... 

E. Other Criminal Law Statutes and Related Legislation ....... 

III. Powers Deriving from the Ancillary Powers Doctrine ............. 

A. Duties Imposed by Statute or Common Law ............. 

B. Justiable Use of Powers Associated with the

Engaged Duty ...................................... 

C. A Comment on the Ancillary Powers Doctrine ............ 

D. Specic Applications of the Ancillary Powers Doctrine ...... 

© [2021] Emond Montgomery Publications. All Rights Reserved.

Search and Seizure

I. Overview

The general rule established by Hunter v Southam Inc1 is that criminal law searches

require prior judicial authorization. Warrantless searches are an exception to that

rule. Warrantless searches are necessitated by the infinite variety of circumstances

in which law enforcement decisions are made—from rote, to “dynamic, dangerous

and rapidly changing,”2 to somewhere between those extremes. As Hunter itself rec-

ognized, it is not always feasible or reasonable to insist on judicial authorization in

advance of a state intrusion upon an individual’s reasonable expectation of privacy.

Accordingly, in appropriate cases, lawful authority to conduct a warrantless search or

seizure can derive from statute or from the common law.3

However, warrantless searches are presumptively unreasonable.4 The Crown, not

the applicant, bears the onus of establishing that a warrantless search was compliant

with section 8 of the Charter. The Crown must demonstrate on a balance of probabil-

ities that the warrantless search is “justified, and hence found reasonable,” pursuant

to the test in R v Collins: that it was authorized by law, that the law itself is reasonable,

and that it was carried out in a reasonable manner.5

This chapter explores the contours of lawful authority to conduct a warrantless

search or seizure. Some sources of authority have been touched on in earlier chapters.6

To facilitate discussion of the dierent policy considerations and concerns associated

with each source of lawful authority, this chapter addresses warrantless searches under

two broad categories: sources of authority that derive from statute or common law first

principles (e.g., consent, abandonment, plain view, exigent circumstances) and sources

1 [1984] 2 SCR 145, 1984 CanLII 33 [Hunter v Southam Inc cited to SCR].

2 R v Carelse-Brown, 2016 ONCA 943 at para 48 (paras 47-48 generally), citing R v Golub, 1997

CanLII 6316, 34 OR (3d) 743 at 750 (CA), leave to appeal to SCC refused, [1997] SCCA

No571 (QL); see also R v Lawes, 2007 ONCA 10 at para 4.

3 Warrantless searches and seizures may trigger statutory post-seizure obligations, which are

explored in greater depth in Chapter 15; see s489.1 of the Criminal Code; R v Tsekouras, 2017

ONCA 290.

4 Supra note 1 at 161 (“I recognize that it may not be reasonable in every instance to insist on

prior authorization in order to validate governmental intrusions upon individuals’ expectations

of privacy. Nevertheless, where it is feasible to obtain prior authorization, I would hold that

such authorization is a precondition for a valid search and seizure… and would require the

party seeking to justify a warrantless search to rebut this presumption of unreasonableness.”).

5 [1987] 1 SCR 265; 1987 CanLII 84; see also R v Mann, 2004 SCC 52 at para 36; R v Buhay,

2003 SCC 30 at para 32.

6 In particular, see Chapter 1 (search incident to arrest, plain view seizure, consent, exigent cir-

cumstances, abandonment); Chapter 2 (strip searches, frisk searches, penile swabs, implied

licence, abandonment, olfactory searches); and Chapter 10 (search incident to arrest and con-

sent as applied to electronic devices).

© [2021] Emond Montgomery Publications. All Rights Reserved.

Chapter  Warrantless Searches and Seizures 

of authority that derive from the common law ancillary powers doctrine (e.g., search

incident to arrest, search incident to investigative detention, safety search).

II. Powers Deriving from Statute and Common Law

First Principles

A. Consent Searches and Seizures

The Charter is built on respect for individual autonomy to make informed decisions

about whether and how to exercise one’s constitutional rights.7 As a result, people

are entitled to waive their section 8 Charter protections by consenting to the privacy-

engaging police conduct.

Unlike the other sources of lawful authority discussed in this chapter, a valid con-

sent is a person’s waiver of their section 8 Charter rights, as distinct from a police

ocer’s power to interfere with a person’s section 8 Charter rights. In other words,

a “consent search or seizure” is not a search or seizure within the meaning of the

Charter even though the police conduct would have engaged the person’s reasonable

expectation of privacy but for that consent.8 In short, whether a valid consent exists

“goes to whether or not there was a search or seizure and not to the reasonableness

of the police conduct.”9

This theoretical distinction is important for doctrinal purposes, but its practical

impact on investigations will be limited.10 Whether consent is analytically constructed

as a waiver that eliminates an otherwise extant reasonable expectation of privacy or

as a source of authority for the police to interfere with a continuing reasonable ex-

pectation of privacy, the bottom line is that the consent must be valid for the war-

rantless conduct to be lawful. Accordingly, as with warrantless search powers, the

7 See R v Wills, 1992 CanLII 2780, 70 OR (3d) 337 at 349-50 (CA).

8 See e.g. R v Reeves, 2018 SCC 56 at para 13; R v Borden, [1994] 3 SCR 145, 1994 CanLII 63 at

160-63; Wills, supra note 7 at 357.

9 Wills, supra note 7 at 357; to similar eect, R v Dyment, [1988] 2 SCR 417 at 431, 1988 CanLII 10;

R v Law, 2002 SCC 10 at para 15 (the essence of a seizure is the “taking of a thing from a

person by a public authority without that person’s consent”). This approach may evolve as the

courts continue to grapple with increasingly complex questions of privacy-engaging state con-

duct. For example, in R v Yu, 2019 ONCA 942 at para 73, the Court of Appeal for Ontario

noted that some courts have chosen to view consent as relevant to “whether the search was

authorized by law, rather than as negating the accused’s reasonable expectation of privacy,”

citing R v Clarke, 2017 BCCA 453, leave to appeal to SCC refused, [2018] SCCA No 65 (QL);

R v RMJT, 2014 MBCA 36.

10One practical impact is on the scope of post-seizure obligations. See Chapter 15 for a discus-

sion of whether a consent seizure triggers the need to file a report to a justice under s489.1 of

the Criminal Code.

© [2021] Emond Montgomery Publications. All Rights Reserved.