The Role of The Police:
"The Search Warrant."
The law still considers that a man's home is his castle and inviolable.1 This long standing development under English law is fully reflected in Canadian law, and has been particularized in section 8 of the Canadian Charter. No one, including a police officer, can make their way into your home with out your express permission. If an entry is to be made without your permission then a search warrant is required.2
Now, a warrant is a "command or permission of a superior which frees the doer of an act from blame or legal responsibility";3 it is an authorization, a sanction, an act of authorization. The granting of a warrant is a judicial function, though as a practical matter search warrants are issued by a quasi judicial officer who is employed exclusively by the police and who can usually be found on duty right at the police station.4 A search warrant will usually be had if the police officer requesting it justifies its issuance upon proper reasons and proper grounds.5 If a warrant is given, then the "doer of the act," the police constable who comes knocking on your door, must bear a "token or evidence of authorization" this is the piece of paper which we call a search warrant. It will be a plain piece of paper and should bear the appropriate words and authorization (the signature and seal of the issuing "justice of the peace").
The law requires that all warrants must include on their face adequate particularity of certain of its essential ingredients. These include a description of the offence alleged, a detailed listing of the items being sought, and an adequate designation of the building, receptacle, or place to be searched.6
What if the police do not have the time to go through the formal process of securing a search warrant; that is to say, that any loss of time would result in the disappearance of valuable evidence. In such a situation, might a warrantless search be justified? The answer comes from the Southam case: a warrantless search might be justified if it was reasonable; however all searches without a warrant are presumed to be unreasonable, and the burden is on the police to show otherwise.7
In many situations, for example, the mobility of a motor vehicle, a search - where the police officer has formed the opinion based on real evidence that is before him at the moment he makes the decision - must be immediately carried out or the evidence will disappear over the brow of the hill, never to be seen again.8 There is an interesting Nova Scotia case, the Matheson case9 where the judge found that the police were acting on an anonymous tip that the accused had drugs in her car (which in fact they found by way of an warrantless search). "The police inquiry on CPIC revealed no information which would indicate the applicant was involved in the drug trade. The officer had no other information from the drug section of the R.C.M.P., or any other source, to indicate the applicant was involved in the drug trade or had any association with individuals who were involved in the drug trade."10 Further, and critical to the outcome of the Matheson case, the police had time to get a warrant, but they figured they didn't have enough to get a warrant. The Matheson case, also, too, is a useful case to demonstrate the notion that a warrantless search is not necessarily OK simply because the citizen gave their consent to such a search.
- For more, see the following commentaries:
- The Police and A Citizen's Rights - October 4th, 1998
- The Police and The Search Warrant - October 11th, 1998
- The Police and Wire Taps - October 18th, 1998
- The Police and Police Checks - October 25th, 1998
- The Police and Entrapment - November 1st, 1998
1 "A requirement of prior authorization usually in the form of a valid warrant has been a constant prerequisite for a valid search and seizure both at common law and under most statutes." (Dickson, J., Southam, 1984.)
2 "... the rights guaranteed in the Charter erect around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass." (Justice Wilson's comments in R. v. Morgentaler,  1 S.C.R. 30) And, the "sanctity of the home has constituted a bulwark against the intrusion of state agents for hundreds of years ... Our society simply cannot accept police wandering about or 'sniffing' around our homes." (La Forest, J. in R. v. Evans,  1 S.C.R. 8.)
4 A search warrant comes about because one police officer makes a pitch to another police officer that such a warrant should issue. This has always struck me as a highly questionable practice. Though, if one were to prove that such warrants were issued in a perfunctory fashion, an action would lie against the issuer in his personal capacity for damages; so a police officers dare not let lose practices seep in.
5 The information that goes before the signing officer is not filtered as it might be in a court of law. The information can be pure hearsay, indeed, the hearsay can come from an unidentified informer. "Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds." (The 1990 Garofoli case, SCC.)
6 R. v. Dombrowski (1985), 18 C.C.C.(3d) 164 (Sack. C.A.) and Bergeron v. Deschamps (1977), 33 C.C.C.(2d) 461 (S.C.C.).
7 Lamer, Collins,  1 S.C.R. 265, 278. Also see what Martin, J. of the Ontario Court of Appeal had to say: "The individual's reasonable expectation of privacy must, of course, be balanced against the public interest in effective law enforcement. However, where no circumstances exist which make the obtaining of a warrant impracticable and when the obtaining of the warrant would not impede effective law enforcement, a warrantless search of an office of fixed location (except as an incident of a lawful arrest) cannot be justified and does not meet the constitutional standard of reasonableness prescribed by s. 8 of the Charter." (R. v. Rao (1984), 12 C.C.C.(3d) 97, at p. 123.)
8 R. v. Debot,  2 S.C.R. 1140. What weighs in very heavily is whether a police constable was aware at the time that he or she was dealing with a person who had a prior conviction.
9 R. v. Matheson (1996), 148 N.S.R.(2d) 161.
10 Para. 17.
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October, 1998 (2019)