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| Patrick Ducharme |
The person who was the subject of a search may also make application for an impoundment order. An impoundment order is an order issued by a Superior Court Justice requiring the searching authorities to place all items seized in a search into the custody of the court until the court makes a final determination as to the validity of the search and seizure.
Continue reading “Impoundment Orders and Disclosure of ITO”
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| Patrick J Ducharme |
Most search warrants will be challenged at trial before the trial Judge by an application under section 8 of the Charter alleging that the search was unreasonable, notwithstanding the authorization of a Justice or Judge. The search warrant may also be challenged by way of an extraordinary remedy such as certiorari or a motion to quash. This type of application must be brought to the Superior Court of the Province, a court of plenary jurisdiction that has authority over the process of the Provincial Court.
Continue reading “Challenges to the Search Warrant”
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| Patrick Ducharme |
Although the precision required of a charging document is not the standard required in the ITO, sufficient facts must be supplied so that the nature of the offence(s) under investigation is identified to the issuing Justice. The police usually attempt to provide as much information as possible about the alleged offence. They do so because the more information included in the ITO, the less likely the warrant will be struck down on an application pursuant to section 8 of the Charter. The Code provides no right of appeal from an order issuing a warrant.
Continue reading “The Offence (related to a Search Warrant)”
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| Patrick Ducharme |
The search warrant must be executed by day unless otherwise specifically ordered pursuant to section 488 of the Code. The terms “day” and “night” are defined in section 2 of the Code to mean between 6 a.m. and 9 p.m. A police officer must be in charge of the search, however, a person who is not a police officer may assist the police officer. Although the police may use force to break into a place authorized by a search warrant, the use of such force must be reasonable and justified. A police officer may have the assistance of persons, who are not named in the warrant or other persons who are not peace officers, provided that the police officer who obtains the search warrant remains in control of and accountable for the search.
Continue reading “Manner of Execution of Search Warrants”
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| Patrick J Ducharme |
The affidavit sworn in support of an application for a search warrant, referred to as the “Information to Obtain”, or, an ITO, must provide sufficient facts to permit the issuing Judge or Justice to determine whether the warrant should be issued. It must at least contain evidence about the alleged offence, the evidence to be seized, and the location of the search; such that reasonable grounds exist for the Justice to order a search based on the fact that at that location the search will likely afford evidence of an alleged offence. The affiant who signs the affidavit has a duty to be full and frank disclosure of material facts.1 In providing information to the issuing Justice full and frank disclosure is particularly necessary because the application is brought and dealt with ex parte.
Continue reading “Minimum Requirements for Search Warrants”
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| Patrick Ducharme |
Most search warrants are now issued pursuant to section 487 of the Code. The provisions of section 487 of the Code have been found to conform to the general requirements for a constitutional search and seizure under the authority of a search warrant.1 The informant police officer must disclose facts upon which the Justice of the peace or Judge may determine the warrant should issue. The Criminal Code contains several provisions that permit the police to search for and seize evidence.2 But section 487 is by far the most important and applies to all federal statutes. Even though other federal and provincial statutes may contain search provisions, the police often rely upon the provisions of section 487 to obtain a search warrant. All searches, even those using a search warrant, are governed by section 8 of the Charter.
Continue reading “Search and Seizure Pursuant to the Code – s. 487”
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| Patrick Ducharme |
Continued from Part 1: The Cases of Grant and Harrison
In Grant the Supreme Court of Canada dealt with a different type of infringement of the right to be free from unreasonable search or seizure. This case involved an appeal by Grant from his convictions on a series of firearms offences, relating to a gun seized by police during an encounter on a Toronto sidewalk. After noting that Grant, who was walking down the street, was fidgeting with his pants, a police officer initiated an exchange with him, while standing on the sidewalk directly in his intended path. At one point, Grant adjusted his jacket, which prompted the officer to ask him to keep his hands in front of him.
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| Patrick J Ducharme |
In July, 2009 the Supreme Court of Canada rendered its decisions in R. v. Harrison1 and R. v. Grant.2 These cases are fundamentally important to understanding how our courts will now interpret applications to remedy Charter infringements of one’s right to be secure against unreasonable search or seizure and arbitrary detentions and arrests by the police.
Continue reading “The Cases of Grant and Harrison”
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| Patrick Ducharme |
Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. This provision has been interpreted, however, as permitting the random stopping of a motorist for the purpose of spot check procedures and the enforcement of highway traffic legislation. Our courts have found that random stops of motorists amount to technical breaches of section 9, however, these infringements of section 8 by the police are saved by section 1 of the Charter as reasonable limits, demonstrably justified in a free and democratic society, as reasonable protections from the ravages of drunk or otherwise impaired drivers.
Continue reading “Section 9 of the Charter”
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| Patrick Ducharme |
Continued from Part 1: Search and Seizure.
Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. A search is “reasonable” if it is authorized by law, if the law authorizing is itself reasonable, and if the search is conducted in a reasonable manner. In other words, a search or seizure must be authorized by a specific statutory or common-law rule, and then, be carried out within the requirements that the law provides. The investigating officers are required to operate on reasonable grounds that import the concept of a credibly based probability. Continue reading “Constitutionality of Search and Seizure”
