Foundation Principles for Search and Seizure Law in Canada

1. Foundation Principles for Search and Seizure Law in Canada Scott C. Hutchison, StockwoodsLLP

2. Introduction & Overview • Scott C. Hutchison • Stockwoods LLP • 416-593-7200 / scotth@stockwoods.ca

3. Overview • Foundation Principles • De-constructing Warrant Provisions

4. Foundation Principles • Law related to search and seizure subject to changes and shifts • Difficult (but not impossible) to keep current with all developments • Even 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

5. Foundation Principles • Three ‘foundation principles’ of search and seizure • Assist in working through problems related to the whether or not it is possible to search without a warrant • Assist in understanding whether or not a warrant is available • Assist in approaching difficult drafting issues and in understanding drafting rules which drive requirements that may otherwise not be intuitive

6. Foundation Principles Reasonableness Search or Seizure Judicial Pre-Authorization

7. Reasonableness • Reasonableness = 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 warrant • Exceptions to warrant requirement in context of prosecution place factual and legal onus on the State • Standard in other contexts (e.g., for civil regulation) is different. • When is the state’s interest in law enforcement superior to the individual’s privacy rights?

8. Search or Seizure • Search or Seizure= any investigative activity which infringes upon reasonable expectation of privacy • Label brings with it presumption of judicial pre-authorization • Extends beyond mere physical intrusion • Will include some “informational searches” that touch on “biographical core of personal information” or which are otherwise protected at law • New challenges of information technologies

9. Judicial Pre-Authorization • Judicial Pre-authorization = meaningful assessment or balancing by neutral third party • Most ‘drafting rules’ driven by need place justice in position to undertake genuinely independent assessment • Unidentified sources – informers and tipsters – are ‘un-assessable’ unless presented properly

10. 487 – The conventional Warrant • All warrants have to be considered by reference to their statutory PRECONDITIONS TO AUTHORIZATION and SCOPE OF AUTHORITY

11. Preconditions to Issuance • Standard of Proof and Essential Elements • Standard of Proof is normally expressed in terms of “reasonable belief” or (less commonly) “reasonable suspicion” • Standard must always be met with evidence which is presented (usually) in written form • Rules of evidence apply, but in modified way driven by the standard

12. Preconditions to Issuance • “Essential Elements” are the facts or circumstances which must be shown before the warrant can be issued • Driven by the language of the section • Text based analysis, aided by constitutional minimums • useful to review the section and prepare checklist for yourself

13. Scope of Authority • Equally, it is important to understand scope of authority granted under warrant • Code 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.

14. Section 487 – The Mother of all Warrants • Conventional warrant – useful starting point. • This is the paradigmatic search power • Not 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

15. 487 – Preconditions to Issuance • Consider the language of 487 schematically to break down the preconditions for issuance • A justice • who is satisfied by information on oath • in Form 1 • that there are reasonable grounds to believe • that there is

16. 487 – Preconditions to Issuance • in a building, receptacle or place • anything 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, or • any offence-related property,

17. 487 – Scope of Authority • The justice has jurisdiction to issue warrant • may at any time issue a warrant authorizing a peace officer or a public officer [enforcing federal laws] who is named in the warrant • The 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.

18. “Satisfied by Information on Oath” • SOURCING, SOURCING, SOURCING • What 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 problems • Police tendency to use the passive voice

19. “Satisfied by Information on Oath” • Hearsay is admissible (because the test is whether the applicant’s belief is reasonable) • Informer/Tipster information admissible but must be handled with care and is weighed for what is worth on paper • Expert evidence • Criminal Record, other believed offences, similar act

20. THREE QUESTIONS READING • All you need to know to review warrant application • 1. What does the officer know? • What is the piece of evidence being placed before the issuing justice • 2. How does the officer know it? • What investigative resource provides that evidence • 3. Why does it matter? • How does that evidence fit into the formation of the officer’s reasonable belief

21. “In Form 1” • Material must be in writing • Four corners rule • Parole additions not admissible (but see contra comments in Araujo)

22. “Reasonable Grounds to Believe” • “Where credibly-based probability replaces suspicion” • A “practical, non-technical” probability • “reasonable probability” • Must 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 ensure no improper considerations involved) (Granston)

23. Other Elements • “That 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

24. Scope of Authority • Power to enter into identified physical location • Power to search at that place to find the things set out in the warrant • Power to break things open and use other reasonable force to execute • Power to seize things falling into the description in warrant • No power to arrest or detain (save as is necessary to ensure effective execution) • No power to search persons at the scene • No power for consequential searches at other locations • Computers if endorsed