Foundation Principles for Search and Seizure Law in Canada

Slide 1

Foundation Principles for Search and Seizure Law in CanadaScott C. Hutchison, Stockwoods LLP

1s.8 among most heavily litigated sections of charter

Measure its impact by reference to CCC 1982 7 pages2007 70 pages

Want to step back and offer some perspective on one important element of this generation of litigation the scope of state conduct constrainedIntroduction & OverviewScott C. HutchisonStockwoods LLP416-593-7200 / [email protected]

2Look at s.8, scope of protectionIssue of privacy as organizing principle, OverviewFoundation Principles

De-constructing Warrant Provisions

3Foundation PrinciplesLaw related to search and seizure subject to changes and shiftsDifficult (but not impossible) to keep current with all developmentsEven if current, Supreme Court of Canada willing to change the rules Frustration of officers facing apparently leads some to throw up their hands : Search & Seizure Fatigue

4Foundation PrinciplesThree foundation principles of search and seizureAssist in working through problems related to the whether or not it is possible to search without a warrantAssist in understanding whether or not a warrant is availableAssist in approaching difficult drafting issues and in understanding drafting rules which drive requirements that may otherwise not be intuitive

5Foundation PrinciplesReasonablenessSearch or SeizureJudicial Pre-Authorization

6ReasonablenessReasonableness = presumption of judicial pre-authorization (or recognized warrantless power)Hunter Standards in a criminal/quasi-criminal investigation a search or seizure is presumptively unconstitutional unless it is conducted pursuant to a warrantExceptions to warrant requirement in context of prosecution place factual and legal onus on the StateStandard in other contexts (e.g., for civil regulation) is different.When is the states interest in law enforcement superior to the individuals privacy rights?7Search or SeizureSearch or Seizure = any investigative activity which infringes upon reasonable expectation of privacyLabel brings with it presumption of judicial pre-authorization Extends beyond mere physical intrusionWill include some informational searches that touch on biographical core of personal information or which are otherwise protected at lawNew challenges of information technologies

8Judicial Pre-AuthorizationJudicial Pre-authorization = meaningful assessment or balancing by neutral third party

Most drafting rules driven by need place justice in position to undertake genuinely independent assessmentUnidentified sources informers and tipsters are un-assessable unless presented properly

9487 The conventional WarrantAll warrants have to be considered by reference to their statutory

PRECONDITIONS TO AUTHORIZATIONandSCOPE OF AUTHORITY

10Preconditions to IssuanceStandard of Proof and Essential ElementsStandard of Proof is normally expressed in terms of reasonable belief or (less commonly) reasonable suspicionStandard must always be met with evidence which is presented (usually) in written formRules of evidence apply, but in modified way driven by the standard 11Preconditions to IssuanceEssential Elements are the facts or circumstances which must be shown before the warrant can be issuedDriven by the language of the sectionText based analysis, aided by constitutional minimumsuseful to review the section and prepare checklist for yourself 12Scope of AuthorityEqually, it is important to understand scope of authority granted under warrantCode is now full of warrant powers (blood, conventional, general, DNA, Databank, impression, DNR, tracking, wiretap, bodypack, etc)Not enough to get warrant, must get the right warrant(s)Be sure to scrutinize exactly what the section and jurisprudence say can and cannot be done under authority of particular warrant.13Section 487 The Mother of all WarrantsConventional warrant useful starting point.This is the paradigmatic search powerNot significantly changed from 1892(only real changes, addition of fugitive information, offence related property and computer (2.1) provisions)Language here carries into other warrants and jurisprudence around that language is largely portable

14487 Preconditions to IssuanceConsider the language of 487 schematically to break down the preconditions for issuanceA justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is 15487 Preconditions to Issuancein a building, receptacle or placeanything on or in respect of which any [federal] offence has been or is suspected to have been committed,anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed [a federal] offence,anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, orany offence-related property,

16487 Scope of AuthorityThe justice has jurisdiction to issue warrantmay at any time issue a warrant authorizing a peace officer or a public officer [enforcing federal laws] who is named in the warrantThe power given to/duty imposed upon the executing officials:(d) to search the building, receptacle or place for any such thing and to seize it, and(e) subject to any other Act of Parliament, to, as soon as practicable, [make a return] in accordance with section 489.1.

17Satisfied by Information on OathSOURCING, SOURCING, SOURCINGWhat evidence have the police gathered so far that explains their belief that the essential elements for the issuance of the warrant are present? Why is their belief reasonable?Most common source of unintended drafting problemsPolice tendency to use the passive voice 18Satisfied by Information on OathHearsay is admissible (because the test is whether the applicants belief is reasonable)Informer/Tipster information admissible but must be handled with care and is weighed for what is worth on paperExpert evidenceCriminal Record, other believed offences, similar act19THREE QUESTIONS READINGAll you need to know to review warrant application1. What does the officer know?What is the piece of evidence being placed before the issuing justice2. How does the officer know it?What investigative resource provides that evidence3. Why does it matter?How does that evidence fit into the formation of the officers reasonable belief20In Form 1Material must be in writingFour corners ruleParole additions not admissible (but see contra comments in Araujo)

21Reasonable Grounds to BelieveWhere credibly-based probability replaces suspicionA practical, non-technical probabilityreasonable probabilityMust be believed by the applicant officer to this standard, that belief must be reasonable(Reasonable grounds to suspect, similar standard courts show special care in assessing to ensureno improper considerations involved) (Granston)22Other ElementsThat there is the present tense requirement Will afford evidence must be something that either alone or taken in relation to other things could reasonably be believed to be evidence

23Scope of AuthorityPower to enter into identified physical locationPower to search at that place to find the things set out in the warrantPower to break things open and use other reasonable force to executePower to seize things falling into the description in warrantNo power to arrest or detain (save as is necessary to ensure effective execution)No power to search persons at the sceneNo power for consequential searches at other locationsComputers if endorsed24