Search Warrants and Reasonable Expectations of Privacy

S.489 of the Code

Allows for seizures of items found beyond those mentioned in the warrant, if there are reasonable grounds to believe the further items will "afford evidence in respect of an offence".

Jones (2017)

An accused disputed he was the author of sent text messages in hands of service provider, but could still claim to have a privacy interest as though he were the author.

S.8 of the Charter

Everyone has the right to be secure against unreasonable search or seizure.

REPs Summary

A prerequisite for a s.8 search; without it, we don't get to Collins because no search or seizure. REP is also a scale or matter of degree - greater REP can raise bar for authorization to search or seize. Must be framed in a "broad and neutral way". Assessed through "totality of circumstances" test. Only those whose Charter rights have been violated can get s.24(2) relief. One may retain a REP in info one voluntarily discloses to others.

Reasonable Expectation of Privacy

A prerequisite for s.8 - if there is no reasonable expectation of privacy in the search or seizure, there's no possibility of an "unreasonable search" that would violate s.8. REP is a threshold requirement - without it, s.8 doesn't apply and Collins questions don't arise.

Cornell (2010)

Cornell was found at home with cocaine and convicted of possession for purposes of trafficking. Manner of search warrant called reasonableness into question due to "hard entry", with masked officers in body armour, with no warrant copy on them. Police can execute a warrant without announcing themselves first only in exigent circumstances; to defend a "hard entry" must show reasonable grounds that police could be concerned about possibility of harm.

Collins (1987) - Reasonability of a Search

1) Was there legal authorization for a search? 2) Was the authorizing law reasonable? 3) Was the manner of the search reasonable? If there is a warrant, likely questions (2) and (3); if there was no warrant, likely question (1).

Valid Search Warrants

A search warrant under s.487(1) must meet three broad requirements to be valid: 1) Information to obtain must set out in sufficient factual detail the reasonable grounds for believing evidence of a crime will be found. 2) Issuing justice must have acted as an independent, judicial arbiter. 3) Warrant itself needs sufficient description of the objects of the search and the place to search.

Why do we have search warrants?

A search without a warrant would be invasive, especially in a place like a home, where an elevated expectation of privacy is present. Search of one's home, one's person or a space with REP can be invasive, disturbing and humiliating.

Kokesch (1990)

An officer did a warrantless "perimeter" search of the accused's house. Candidly conceded his suspicion did not rise to the level of "reasonable and probable". Search violated s.8 as no warrant meant no legal authorization. Need reasonable and probable grounds.

Tessling (2004)

Based on confidential sources, suspected Tessling was running a marijuana operation out of his home and installed an infra-red camera to measure heat radiating, which they then used to obtain a search warrant. Accused successfully appealed drug trafficking charges as evidence should have been precluded due to s.8 violation - no REP in thermal images of person's home so no s.8 violation. What value is there to keep heat emanations from a home private? Doesn't reveal intimate details.

Minimum Standard

Default position that "reasonable and probable grounds... to believe that an offence has been committed and that there is evidence to be found at the place of the search." Consistent with s.8 of the Charter. There can be variances from that default - where the individual's interest is not simply his expectation of privacy or where search threatens bodily integrity.

Definition of Search Warrant

Judicial pre-authorization to search. "An order issued by a justice under statutory powers, authorizing a named person to enter a specified place to search and seize specified property which will afford evidence of the actual or intended commission of a crime" (MacIntyre v AG).

S.487 of the Code

Lays out standard/conventional warrant provisions. A warrant to search a building, receptacle or place, may be issued "if a justice is satisfied by information... that there are reasonable grounds to be believe that there is evidence in regard to an offence". S.487.11 allows for search powers without a warrant, if grounds for a warrant exist but exigent circumstances make it impracticable to obtain.

Gomboc (2010)

No s.8 violation in a warrantless request that a company track accused electricity use. No REP in this info.

Collins (1987)

Officer grabbed accused's throat to prevent her from swallowing drugs; a struggle ensued and officer found heroin. Trial judge found evidence was in violation of s.8, but did not exclude it. Needed to have reasonable grounds for believing he'd find a narcotic.

Edwards (1996)

Officers had a suspicion that he was keeping drugs in his girlfriend's apartment but didn't think there were reasonable warrant grounds; police lied and mistreated girlfriend to point to drugs and implicate him . No REP in his girlfriend's apartment as he was "no more than an espeically privileged guest", without the control his girlfriend did. More of an emphasis on property rights as he did have a few items there. "The privacy right allegedly infringed must, as a general rule, be that of the accused person who makes the challenge". Does this imply the homeless or precariously housed have no REP? Does it make too much of property rights?

Warrants Summary

Ordinarily securing a warrant requires reasonable and probable grounds to believe that evidence will be found - more than reasonable suspicion. These reasonable grounds must be set out in sufficient details in an ITO, while the warrant must include sufficient description of the objects of the search. ITOs must be candid and can't rely in misleading representations or facts obtained through Charter breach. A no-knock entry can mean a search was carried out in an unreasonable manner, but police make the call.

Laporte v Laganiere (1972)

Police suspected that petitioner was part of a robbery, due to scars. Police sought and obtained a warrant to search his body, particularly through surgery to extract the bullet. No Canadian precedent for such a warrant as the human body is not a "building, receptacle or place". We do have a warrant to obtain a blood sample given reasonable grounds (s.320.29) or DNA (s.487.05) for certain offences.

Grant (2013)

Reads an "exigent circumstances" requirement to prevent violation of s.8. In new Controlled Drug and Substances Act, warrantless searches are authorized in exigent circumstances. Must be real urgency and not just convenience.

Wong (1990)

There was a REP in a hotel room where illegal gambling was to take place. Individuals can expect that agents of the state will not engage in warrantless video searches.

Hunter v Southam (1984)

There was a search, with prior authorization of the Edmonton Journal; was a very broad search, which argued violated s.8. While there was prior authorization, there were no reasonable grounds that an offence had been committed or evidence could be found. Warrantless searches or seizures are presumptively unreasonable.

Totality of Circumstances Test

To determine a REP, four prong test: 1) The subject matter of the search; 2) whether the accused has a direct interest in the subject matter; 3) whether accused has a subjective expectation of privacy; 4) whether such an expectation would be objectively reasonable. REP's are normative, not merely descriptive. Not just a matter of whether people can in fact expect privacy, law is supposed to protect a standard of privacy people ought to have.

Gillis (1982)

Trial judge quashed the search warrant that'd been issued as the information to obtain didn't contain sufficient information to establish reasonable grounds. Warrant contained inadequate descriptions.

Patrick (2009)

We abandon REP in garbage we put out to edge of our property. Patrick charged with various drug offences related to ecstasy lab he ran, police obtained evidence of it through a warrantless garbage search, which they then used to secure a warrant. Attempted to have evidence excluded as violation of s.8. Subject matter - "a bag of information"; accused subjectively would expect privacy in his trash; no objective REP as abandonment is key. Cheap and easy enough to secure privacy in trash, given the value of police to do warrantless searches of garbage.

M(NN) (2007)

With information to obtain, there must be reasonable grounds for believing evidence will be found - more than just reasonable suspicion. Don't need personal knowledge, but a "substantial basis" for belief; can come from an informer, but reliability must be apparent and assessed.