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WDW101Y1 (300)
Lecture

February 17 Lecture

7 Pages
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Department
Woodsworth College Courses
Course Code
WDW101Y1
Professor
William Watson

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WDW325 February 17, 2011 Search and Seizure Constitutional Considerations
Lecture 6
RECAP
1.With a valid search warrant
2. If conditions to obtain a search warrant exist but impracticable to get a warrant
because of exigent circumstances;
3. Item seized is in plain view (common law power)
4.Search incident to arrest (common law power)
5.Consent search
TO GET A WARRANT:
1.Need RPG to be believe
a)An offence has been committed
b)Evidence of the offence will be found in the place to be searched
2.Must describe items to be searched for and seized in detail
CONSTITUTIONAL CONSIDERATIONS
apply to ALL searches
does not matter if authorized by statute or common law
ANY search must comply with minimum constitutional requirements
if a particular search OR a law authorizing the search does not comply with the
constitutional requirements, it will be UNREASONABLE and a violation of s. 8 of
the Charter
R. v. Collins (1987, S.C.C.)
FACTS: Police had a suspected drug trafficker under surveillance in a bar in Gibson, B.C. ; police
tackled Gibson in a bar and put her in a throat hold (to stop her from swallowing drugs); police
used considerable force in effecting the search; found a balloon of heroin in her hand
Narcotics Control Act (replaced by the Controlled Drugs and Substances Act)
10. (1) A peace officer may, at any time,
(a) without a warrant enter and search any place other than a dwelling-house, and
under the authority of a writ of assistance or a warrant issued under this section, enter and search
any dwelling-house in which he reasonably believes there is a narcotic...
(b) search any person found in such place; and
(c) seize and take away any narcotic found in such place, any thing in such place in
which he reasonably suspects a narcotic is contained or concealed...
The officers were suspicious BUT
- no evidence the police had RPG that Collins had drugs
- did not make any observations that would give rise to RPG
- no observed transaction
ISSUE: Is this an unreasonable search under s. 8?
If the search is warrantless, it is presumptively unreasonable (even if permitted
under legislation)
TEST: a search (any searches) will be reasonable if
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1) Authorized by law (statute or common law); AND
2) The law itself is reasonable; AND
3)The search is carried out in a reasonable manner.
RULING: 1. there was no evidence on reasonableness of belief to know whether it was
authorized by law (NCA) [part 1 of test]
2. no evidence that the manner of the search was reasonable [part 3 of test].
THEREFORE, the search was unreasonable and the drugs were obtained in violation of s. 8 of the
Charter
What happens to the heroin: would we admit the evidence anyway?
S. 24(2): Where a court concludes that evidence was obtained in a manner that infringed or
denied any rights or freedoms the evidence shall be excluded if it is established that, having
regard to all the circumstances, the admission of it in the proceedings would bring the
administration of justice into disrepute.
Focus of analysis is on effect of admission of evidence
Not intended as remedy for police misconduct
Designed to prevent bringing the administration of justice into further disrepute by
admitting evidence obtained in violation of the Charter
Would the admission of evidence bring the administration of justice into disrepute in
the eyes of a reasonable person, dispassionate and fully apprised of the
circumstances of the case?
TEST FOR EXCLUSION OF EVIDENCE
a)Trial fairness
i) what kind of evidence was obtained? (real vs. conscriptive evidence)
ii) what Charter right was infringed?
b) Seriousness of the Charter violation
i) was Charter violation serious or of a merely technical nature?
ii) could evidence have been otherwise obtained?
iii) deliberate/wilful/flagrant vs. inadvertent/good faith?
iv) circumstances of urgency or necessity?
v) other investigatory techniques available?
c) Effect of Exclusion
i) is the offence serious?
ii) is the evidence essential to Crowns case?
Hunter v. Southam (1984, S.C.C.)
FACTS: investigation under the Combines Investigation Act of the Edmonton Journal; Director of
Investigations authorized officers to search the premises of Edmonton Journal (in Edmonton and
elsewhere in Canada) and examine anything thereon and copy or take away for copying any book,
paper, record or other document that in your opinion may afford evidence
Search under authorized s. 10 of the CIA
s. 10(1) in any inquiry under this Act the Director or any representative may
enter any premises on which the Director believes there may be evidence relevant to the matters
being inquired into
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WDW325 February 17, 2011 Search and Seizure Constitutional Considerations Lecture 6 RECAP 1. With a valid search warrant 2. If conditions to obtain a search warrant exist but impracticable to get a warrant because of exigent circumstances; 3. Item seized is in plain view (common law power) 4. Search incident to arrest (common law power) 5. Consent search TO GET A WARRANT: 1. Need RPG to be believe a) An offence has been committed b) Evidence of the offence will be found in the place to be searched 2. Must describe items to be searched for and seized in detail CONSTITUTIONAL CONSIDERATIONS apply to ALL searches does not matter if authorized by statute or common law ANY search must comply with minimum constitutional requirements if a particular search OR a law authorizing the search does not comply with the constitutional requirements, it will be UNREASONABLE and a violation of s. 8 of the Charter R. v. Collins (1987, S.C.C.) FACTS: Police had a suspected drug trafficker under surveillance in a bar in Gibson, B.C. ; police tackled Gibson in a bar and put her in a throat hold (to stop her from swallowing drugs); police used considerable force in effecting the search; found a balloon of heroin in her hand Narcotics Control Act (replaced by the Controlled Drugs and SubstancesAct) 10. (1) A peaceofficer may, at any time, (a) without a warrant enter and search any place other than a dwelling-house, and under the authority of a writ of assistance or a warrant issued under this section, enter and search any dwelling-house in which he reasonably believes there is a narcotic... (b) search any person found in such place; and (c) seize and take away any narcotic found in such place, any thing in such place in which he reasonably suspects a narcotic is contained or concealed... The officers were suspicious BUT - no evidence the police had RPG that Collins had drugs - did not make any observations that would give rise to RPG - no observed transaction ISSUE: Is this an unreasonable search under s. 8? If the search is warrantless, it is presumptively unreasonable (even if permitted under legislation) TEST: a search (any searches) will be reasonable if www.notesolution.com
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