Lecture at: 03/10/2014
CLASS NOTES FOR: Poli Sci 3NN6
4 March 2014
What about things not in plain view such as electronic surveillance?
- Are these regarded as “plain view”?
1. There is an inherent expectation of privacy involved in any kind of electronic communication, eg. Text
messages, mail, etc.
2. What about an individual that decides to wear a wire?
a. Conversation that was taking place was between two individuals?
R. v. Duarte
- Police informant consented to the police installing audio and video equipment in his
apartment and the transaction of drugs.
- Duarte was carrying and upon completing the transaction was arrested,
- Surveillance should not be admissible and the Supreme Court agreed, no difference between
participant and third party surveillance. Call and someone wearing a wire, both had a reasonable
expectation of privacy, that the person that they were being addressed to would only hear their words!
- If in public, then there is no expectation of privacy.
- Yes rights were violated, but it wasn’t so serious or intentional that it would lead to the
exclusion of the evidence from the trial.
- Talking to people would be admissible (in calls); but not the content?
2. Unreasonable / Reasonable
DEFINITION - Meaning of unreasonable is anything that is not reasonable.
i. Authorized by law (reasonable) if the law authorizing is reasonable, and if it’s carried out in a
manner that is reasonable. In order to comply with section 8 of the charter, in almost all
circumstances the police and other members of the state require a WARRANT. If police obtain a
warrant, law authorizes search.
Hunter V. Southam
WHEN A SEARCH IS AUTHORIZED AND REQUIREMENTS
- CONTEXT: Combines investigation act, competition act. Provided that agents of the state
could enter into business premises to search for evidence and seize property, relevant to
an inquiry under the act. I.E if a corporation has acted in an uncompetitive manner.
Required that agents had to obtain an approval, but from a member of the restrictive trades
practices commissions whom was also the tribunal dealing with the cases.
- Investigators had to obtain of the restrictive trades practices commission.
- Raided Edmonton journal and its anticompetitive behaviour
- SUPREME COURT - held that a search is reasonable only if authorized by law and to meet
- 1. Warrant had to be obtained in advanced of the search
- 2. It had to be issued by an independent judicial officer
- 3. Only after being established by oath that reasonable and probable grounds had been
committed and that evidence was to be found in the place of the search.
- WRITTEN AFFIDAVIT OR APPEARING BEFORE SWEARING THAT THEY HAD
REASONABLE AND PROBABLY GROUNDS THAT OFFENCE HAS BEEN COMMITTED.
- Requirement to comply with authorized by law.
REQUIREMENT OF WARRANT
a. Obtained in advance
Angie © McMaster University 1
Winter 2014 b. Issues by independent judicial officer
c. Issued only after established under oath that ‘reasonable and probable grounds’ exist to believe than
an offence has been committed and that evidence has been committed and that evidence relating to
offence will be found in place to be searched.
Exigent circumstances - where obtaining a warrant is not practical.
R v. Grant
- Police officer stopped an individual who was on his way home on a standard road stop for
driving under the influence
- Grant was driving a pick up truck
- Grant was not driving under the influence, but in the middle of the stop the police officer
noticed there were unique items in the bed of the pick up truck, such as items that could be
used in a growing operation that takes place indoors.
- Odd behaviour and called it in and turns out that Mr. Grant was a known individual to the
police, and known as being a drug trafficker, and that Mr. Grant may have been in the
process of dismantling his growing operation and moving it.
- If police waited to obtain warrant, then Mr. Grant would have absconded with all of the
- Police went on to the property (rural setting) and they started looking through the basement
windows and were able to find items associated with growing marijuana.
- Left and obtained a warrant, and based on the information they had from the observation of
the police officer, and charged him with trafficking.
- Mr. Grant argued that both searches where they entered on to the property and was an
illegal search, and this search lead to the warrant and the second search was unlawful.
- Supreme court disagreed.
- SET OUT EXIGENT CIRCUMSTANCES
- Occurred where there exists and eminent danger of the loss, removal or destruction of the
evidence that is being sought if search and seizure is delayed.
- Just because something is in a vehicle that can be moved, does not mean that exigent
exists, but can exist out of something located in a vehicle
- EMINENT DANGER IF SEARCH IS DELAYED.
- Exigent circumstances found that these existed and the search was not unlawful.
- **Search conducted by the police was MINIMAL in nature, did not kick doors, etc. but
looked into windows and on the basis of this went to get a judicial authorization.
- **Police officer is entitled to search individual when arresting or the place where they are
being arrested to ensure that the public is not in danger. BUT ON ARREST.
ii. Law is reasonable
a. Presumably the combines investigation act woul