Search Warrants - An Introduction
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Generally speaking, a search
warrant is an order of the court issued by
a judge or justice
of the peace that
authorizes law
enforcement officials
(or some other government agents) to conduct a search of a
person or location for evidence of a crime and to seize evidence
if it is found. Since the enactment of the Canadian
Charter of Rights and Freedoms, the Supreme Court has, on my occasions, commented
and defined the circumstances surrounding the issuing and enforcement of search
warrants.
Hunter v. Southam was the first post-Charter
case that dealt with search warrants to reach the Supreme Court. One of the
central issues identified in Hunter
was whether the newly enacted sec. 8 of the Charter
– the right to privacy – changed how search warrants should be issued. In Hunter, the director of the
Anti-Competitive Trade Board was statutorily empowered to issue a search
warrant allowing investigators to search and seize documents of companies
suspected in engaging in anti-competitive practices. Southam challenged the
constitutionality of the director’s power to issue search warrants, arguing
that he was not a neutral arbitrator who could weigh the competing interests
objectively, since he was too closely linked to the investigatory role of the
Board. By competing interests, one is referring to society’s interest in
investigating anti-competitive practices versus the individual’s interest in
being free from government intrusion. The Supreme Court agreed with Southam’s
position and held that the person charged with issuing a search warrant must be
an impartial arbitrator who can act judicially, and who is devoid of any
interest in the outcome of the search. Additionally, the neutral arbitrator had to be satisfied
on the evidence presented to him that there exists reasonable and probable
grounds that the offence has been committed, and that evidence pertaining to
the offence would be found at/on the place or person in question. Moreover, in order to safeguard the interest of the
individual to be free from arbitrary search and seizer, the Supreme Court added
the further requirement that a search warrant be obtained before the search.
This might seem like an obvious precondition, but what had actually occurred
until the decision of this case was that investigators would justify the need
for the search on materials or information that was obtained through a
warrantless search. This is known as justification on an ex post facto basis. The Supreme Court unequivocally denounced this
practice.
Three years after Hunter,
the Supreme Court heard the case of R
v. Collins. The main issues decided in this case were what burden of
proof the accused bore in proving a violation of his/her sec. 8 (privacy)
rights, what circumstances give rise to a presumption that an unreasonable
search took place, and what factors to consider in rebutting that presumption.
The Collins Court held that
where the accused claimed his sec. 8, right to privacy, was infringed, he/she
bore the burden of proving that this was so, on the balance of probabilities
(otherwise known as the civil standard of proof). However, where the search or
seizure was conducted without a warrant, the search is automatically presumed
to be unreasonable. The prosecution may attempt to rebut that presumption by
showing on the balance of probabilities that (1) the search was authorized by
law (this includes both statute and common-law), (2) the law itself is
reasonable, and (3) the search was conducted in a reasonable manner. If the
prosecution is unable to establish that these three requirements existed, then
the search or seizer is deemed to be unreasonable.
Unfortunately, that is not the end of the inquiry. Even
if the search or seizer is held to be unreasonable, the burden shifts back to
the accused to prove that the evidence should nonetheless be excluded. This is
known as the sec. 24(2) analysis. This section is the remedies provision of the
Charter, and as such, possesses its
own inquiry. This inquiry was recently refined by the Supreme Court in the
joint-cases of R v. Grant and R v. Harrison. For all practical
purposes, the Supreme Court has now made it much harder for the accused to exclude
what is otherwise unlawfully obtained evidence. In order to exclude unlawfully/improperly
obtained evidence under sec. 24(2), the accused must: (1) convince the court
that the breach is serious enough; (2) the impact on the Charter-protected interests of the accused is
significant enough to outweigh society’s interest in the adjudication of the
case on its merits. In conducting this balancing exercise, the Court must
assess each of these three factors to determine whether a reasonable person,
fully informed of the all of the circumstances and the values underlying the Charter, would conclude that the (3) admission
or exclusion of the evidence could bring the administration of justice into
disrepute. When asking this question, the focus is on the damage that condoning
the Charter violation by accepting
or rejecting the fruits of an unlawful search or seizure could do to the
long-term interest in maintaining the integrity and public confidence in the
justice system.
Under part one of the sec. 24(2) test – seriousness of
the breach – the
main focus is on assessing the blameworthiness
of the conduct. This focuses most intently on the state of mind of the officer
(or other government agent) about his/her Charter compliance, but
extends to include systemic or institutional failures in Charter
compliance. Moreover, the Charter-infringing state conduct will be more
serious where it is part of a larger pattern of Charter violations committed
during the investigation of the accused – Ex. If the accused’s “right to
counsel” was also infringed during the search.
Under part two of the sec. 24(2) test – significance of
the impact of the unreasonable/unlawful search – the significance of the
impact of the violation on the accused is garnered by examining the nature and
degree of intrusion of the Charter breach into the Charter-protected
interests of the accused. The way the impact is assessed varies with the kind
of evidence sought to be admitted. Is the evidence an inculpatory statement, a
bodily sample or other physical evidence that would have been discoverable? Generally
speaking, the degree of intrusion that occurs when statements are
unconstitutionally obtained is high. The degree of intrusion caused when bodily
samples are secured depends upon the extent to which privacy, bodily integrity,
and human dignity are compromised given the nature of the samples and the
manner in which they are secured. The significance of the impact of the
violation where non-bodily physical evidence is obtained turns primarily on the
manner of discovery and the degree to which the manner of discovery undermines
the Charter-protected privacy interests
of the accused, although privacy interests related to the nature of the
non-physical evidence also fall to be considered. For example, unreasonable pat-down
searches are more offensive than property searches; but property searches can
further be broken down into one’s home, one’s car, one’s office, etc…
Finally, under part three of the sec. 24(2) test –
society’s interest in adjudication on the merits — the weight to be accorded to society’s
interest in the adjudication of the case on its merits varies according to (1)
the reliability of the evidence and (2) the importance of that evidence to the
case for the prosecution. Courts are to determine whether the vindication of
the specific Charter violation through the exclusion of
evidence exacts too great a toll on the truth-seeking function of the criminal
trial.
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Keywords: Search Warrants; Warrants; Hunter v. Southam; R v. Grant; R v. Harrison; Section 24(2); Sec. 24(2); S. 24(2); Charter; 24(2) Analysis; Excluding Evidence; Excluded Evidence; Inadmissible Evidence; Inadmissibility of Evidence;
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