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I.

CRIM PRO RULES SEARCH & SEIZURE a. General Principle: Balance individual interests (i.e. liberty) with interests of the state (Hunter v. Southam) b. Search & Seizure Definition: A state investigative technique is or is not a search or a seizure depending on whether it infringes on a persons reasonable expectation of privacy. Distinction b/w evidence seized & evidence found.

c. Searches With Warrant s. 487 Searching Building, Receptacle, Place & Surrounding Area (p. 5 outline) i. Warrant Requirements:
1. Must be issued by Justice. 2. Justice must be satisfied on reasonable & probable grounds that evidence will be found. 3. Facts must be clear & concise, and set out fully & frankly by someone w/ first hand knowledge, which was obtained legally. a. Need for Specificity in advance: PO must inform Justice w/ reasonable degree of precision, what evidence will be found. Limited to searching for physical items. BUT: b. s 489(2) while searching under a warrant may seize items not mentioned in the warrant if they believe on reasonable grounds that they were obtained by, or were used in, or afford evidence concerning an offence.

ii. 4 categories warrant issued for: 1. Anything on or in respect of which an offence has been committed; 2. Anything that will provide evidence regarding an offence or the location of a person suspected
of committing an offence;

3. Anything reasonably believed to be intended to be used to commit an offence for which the
person could be arrested without warrant or 4. Offence related property; d. DNA Warrants p. 6 e. Judge Reviewing Warrant p. 6

f. Searches W/O Warrant (p. 6-7 outline) (p. 81 book) i. Threshold Issue: Wwarrantless prima facie unreasonable under s 8 Charter. To be breach of s 8,
person searched must have a reasonable expectation of privacy over their person, territory and information. 1. Exp of Privacy = Entitlement to privacy. Priv person can expect to enjoy in a free society.

ii. What type of interests does Privacy protect? (Tessling) 1. Personal = (e.g. strip search) Highest protection 2. Territorial = More protection in home, less in vehicle, less in prison 3. Informational = s.8 protects information which tends to reveal intimate details of the lifestyle
and personal choice of the individual. Tessling involved heat being emitted from home- taken as informational privacy, not territorial, so fly-over detecting pot plants didnt violate.

iii. Who has a expectation of Privacy? Edwards Totality of Circumstances factors: 1. Presence at the time of search 2. Possession or control of property searched 3. Ownership of property
4. Historical use of property 5. Ability to regulate access. Guest no privacy. Passenger no privacy.

iv. Is the search Reasonable? Collins factors: 1. Is the warrantless search authorized by law/Consent: a. Statute -487.11: Search ok if conditions for warrant exist, but cant get b/c of exigent
circumstances

b. Common Law: i. Search incident to arrest Was the arrest was lawful? Search must be related to the actual arrest made: 1. Valid purpose objectively exists & subjective officer determination to conduct search e.g. to ensure safety; protection of evidence from destruction, and discovery of evidence (R v Caslake). 2. Search was conducted in a reasonable manner. 3. Can extend to surrounding area building or car in which was arrested (Cloutier). HOWEVER, search of home incident to arrest not allowed except in exceptional circumstances where a compelling state interest arises. Eg: risk of harm.

ii. Search during Investigative Detention: Absence of reasonable grounds to


arrest.

1. Must have independent grounds to justify the search. 2. Must be conducted in reasonable manner limited to pat down.
3. Only if pat down gives rise to reasonable grounds that more intrusive search is necessary (feeling hard object) can PO proceed further. 4. Search must be both objectively & subjectively justified.

iii. Exigent Circumstances: Not a justification for search, but for proceeding w/o
warrant. Grounds for search must exist independently. Imminent danger of loss, removed, destruction of evidence if delay.

c. Consent - Whether consent valid & extent of consent: i. Compliance doesnt constitute consent. Valid waiver requires to have at leas
sufficient available info to make the preference meaningful. R v. Wills sets out 6 conditions that need to be satisfied (p. 106)

2. Is the law itself reasonable? The higher the level of privacy expected, the more difficult it
will be to determine that the search was reasonable, 3. Is the manner in which the search is carried out reasonable? Physical part. The more intrusive the nature of the search, the greater the constraints on way in which can be reasonably performed.

v. Remedy for invalid seizure? Charter s. 24(2) exclusion of evidence. See Grant for elements. g. General Warrant s 487.01. Provides warrants to perform investigative techniques not covered by Code. i. Broad = allows search for evidence, and also allows PO to use any device, technique, procedure or do
anything.

ii. Anticipatory Warrant: Allows for warrant on grounds that offence will be committed (as opposed to
has been committed of s. 487) iii. Not limited to building, receptacle, or place like s. 487 iv. Shows that there are NO LIMITS on techniques potentially authorizable. v. LIMITS: Issued by Judge or Justice (but not of peace). Judge can attach conditions. Just must be satisfied that is in the best interest of justice to issue warrant.

II.

POWERS OF DETENTION (p. 7-8) a. Definition of detention: Where person submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist (Therens) Physical liberty, but also some situations of psychological detention. Eg statutory breathalyser demands, routine traffic stops. i. May give rise to s. 10(b) right to counsel, but NO bright line rule but some factors to consider: 1. Language/tone of PO = request v. direction 2. Whether person told didnt have to answer or accompany PO 3. Whether person taken to station vs. came by request

4. **Grant** outlines elements. R v. Suberu as well. (p. 7) b. Common Law Powers of Detention: CL detentions more controversial: i. New Test to create Common Law power Waterfield: 1. Does PO conduct fall w/in scope of any duty imposed by statute or recognized at CL?
2. Does conduct involve unjustifiable use of powers associated w/ the duty?

ii. EG Dedman case upheld program of randomly stopping cars w/ goal of detecting impaired drivers.
Satisfied both aspects of above test: 1. Preventing crime & protecting life by controlling traffic = within scope of PO duty. 2. Interference deemed unjustifiable due to short duration of stop & given seriousness of impaired driving.

c. Investigative detention Mann Test: i. The detention must be viewed as reasonably necessary on an objective view of the totality of the
circumstances;

ii. Informing POs suspicion there is a clear nexus b/w individual detained & a recent or ongoing criminal
offence. iii. The overall reasonableness of the decision to detain must further be assessed against all of the circumstances the extent to which interference w/ individual liberty is necessary to perform POs duty.

III.

ARREST (p. 8-9) (p. 176 book) a. Arrest Definition: Words of arrest accompanied by touching w/ view of detention, or by the person submitting to the arrest (R v Whitfield). Must give notice to arresting person of reasons for arrest: s 10(a) Charter; s 2 b. Used as a last resort. Judicial confirmation must occur before or after the arrest.

c. Arrest With Warrant: i. Warrant can be issued only after an information that sets out reasonable grounds to believe that person
has committed an offence is laid before Justice: s 504 creates this for indictable offences and s 795 for summary offences. ii. A summons MUST be issued instead of a warrant, unless to do so would not be in the interests of the public: s 507.

d. Arrest in Dwelling House Judicial preauthorization required 1. Person issuing warrant must be satisfied on reasonable grounds that to be arrested is present
immediately before entering dwelling house. 2. PO can enter W/O warrant in exigent circumstances: immanent harm, destruction of evidence 3. Knock & Announce, except when announcement would expose PO/other person to imminent harm or destruction of evidence. 4. Common Law exception to enter dwelling in hot pursuit single transaction.

e. Arrest W/O Warrant s. 495 for Police, s. 494 for Citizens


i. s 495 - Police officers 1. Peace officer may arrest anyone who has committed (PO personally witnessed) an indictable offence or who, on reasonable grounds (more than mere suspicion) he believes has committed, or is about to commit, an indictable offence 2. Peace officer may arrest anyone he finds committing a criminal offence (i.e. apparently committing: R v Biron) 3. Peace may arrest a person if he reasonably believes that a warrant exists for the persons arrest

ii. s. 495(2) Limits on Arrest Power Act as Guidelines only: 1. GR: As long as the power to arrest was created by s. 495(1), s. 495(2) did not remove it.
2. Applies to: a. Indictable offenses in the absolute jurisdiction of Prov Ct judge;

b. Hybrid offenses c. Summary conviction offenses

3. Directs PO not to arrest simply b/c an arrest power exists, rather, calls for some other factor to
be present as well. May arrest b/c believes on reasonable grounds that arrest is only way to do one of these things: a. Establish identity of person b. Secure/Preserve evidence of or relating to the offence, or c. Prevent continuation or repletion of the offence, or commission of another offence. d. Reasonably believes wont attend Ct unless arrested

4. If arrested for one of above offenses, s 497 states must release on an appearance
notice/summons, unless 495(2)(d) or (e) apply - get ID; secure evidence; wont show in court. f. Force

i. As much as necessary, provided reasonable grounds to use that much force. Criminally responsible for
using excessive force.

ii. Force likely to cause Death/ GBH permitted only when:


1. Even if there is a warrant, a warrantless arrest would be allowed; 2. has taken flight to avoid arrest; 3. Person using force believes it is reasonably necessary to protect PO/other person from imminent or future death/GBH; 4. Flight of person cant be prevented in less violent manner g. Rights arising on arrest i. Statutory protections: 1. Where the offender is NOT released, s 503 - accused is to be brought before a JP to consider the issue of release without unreasonable delay, and in any event, within 24 hours. Failure to do so may result in arbitrary detention under s 9 Charter. ii. Charter rights on Arrest (p. 187): 1. s 10 of the Charter creates specific guarantees arising on arrest: a. must be informed promptly of the reasons for arrest; b. Must be informed of right to counsel

2. Informational Duties: Informed of right to retain counsel, which includes: info a/c access to
counsel free of charge, how to gain access to this service. Cannot be waived. a. should be re-warned if: i. Substantial change in circumstances affecting s degree of jeopardy ii. who initially wants to talk to counsel, changed mind.

3. Implementation Duties not as firmly guaranteed:


a. b. c. d. e. f. Where requested to speak w/ counsel, provide w/ reasonable opportunity to do so. To consult in private. Pick counsel of choice. When counsel requested, PO hold off from questioning until had time to do so. Can be Waived: declining to speak to counsel. Can be lost if not reasonably diligent in exercise of rights. Silence wouldnt be a waived, but could be a failure of reasonable diligence. arrested & has spoken w/ counsel may then be questioned by PO.