Reasonable Expectation of Privacy
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Definition
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Facial Validity of the Warrant
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Amplification of the Warrant
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Excising the Warrant
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Reasonable Grounds to Believe
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Testing the Evidence at Trial: Cross Examination of the Affiant
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Testing the Evidence at Trial: Garafoli Applications
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Electronic Searches (mobiles and computers)
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Notice Requirements
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Safety Searches
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Exigent Circumstances
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Motor Vehicle Searches
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Border Searches
Manner of Execution of a Search
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Challenging a Production Order
Interception of Private Communications
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The Test
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The Probable Cause Requirement
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The Investigative Necessity Requirement
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The Standard of Review
Reasonable Expectation of Privacy
Every investigatory technique used by police does not amount to a “search” within or for the purposes of s. 8 of the Charter. Police conduct that interferes with a reasonable expectation of privacy constitutes a "search" for the purposes of s. 8 of the Charter: R v Law, 2002 SCC 10 (CanLII), at para. 15; R v Tessling, at para. 18; R v Wise, 1992 CanLII 125 (SCC),
In order to engage section 8 of the Charter, the individual must first have a reasonable expectation of privacy in the thing searched. Only where state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a “search” within the meaning of s. 8: R v Jackman, 2016 ONCA 121 at para 21
An individual’s reasonable expectation of privacy must be assessed contextually, and may vary depending on the nature of the circumstances: R v Jackman, 2016 ONCA 121 at para 21
For a thorough review of the jurisprudence on reasonable expectation of prviacy, particularly in the context of informational privacy, see R v Orlandis-Habsburgo, 2017 ONCA 649 at paras 39-115; see also R v Marakah, 2016 ONCA 542 at paras 46-56
In the informational context, s.8 of the Charter protects “a biographical core” of information that “tends to reveal intimate details of the lifestyle and personal choices of the individual.” A physical address does not, of itself, reveal intimate details about one’s personal choices or way of life. Ordinarily, it is publicly available information: R v Saciragic, 2017 ONCA 91
Note, It is not only the type of police conduct that determines whether a search has occurred, but also the purpose of that conduct that is controlling. A search is about looking for things to be used as or to obtain evidence of a crime. To be certain, s. 8 protects personal privacy. It guarantees the right of persons not to have their bodies touched or otherwise explored for the purpose of disclosing objects, matters or information that they wish to conceal. State actions that interfere unreasonably with a person’s bodily integrity for such a purpose breach a person’s right to privacy: R v Rutledge, 2017 ONCA 635 at paras 19-21
Standing
Factors relevant to the question of "standing" to challenge a search of aonther person's home include whether the accused: is a tenant; has a house key; gets mail at the residence; is present when the warrant occurred testified about a reasonable expectation of privacy in the home: R v Henry, 2016 ONCA 873 at paras 6-7
A finding of constructive possession is not inconsistent with a finding that an accused has no standing to advance a section 8 argument in relation to a search of the premises where drugs were found: R v Qiang Wu, 2017 ONCA 620 at paras 23-25
See R v Marakah, 2016 ONCA 542 at paras 26-32.
Marakah also specifically deals with a reasonable expctation of privacy in informational content: see paras 46-56; see also R v Orlandis-Habsburgo, 2017 ONCA 649 at paras 39-115;
Search Warrants
Definition
A search warrant is an order issued by a justice of the peace that authorizes the police to enter a specified place to search for and seize specific property: R v Ting, 2016 ONCA 57 at para 47
ITO
police choices about equipment and the manner of execution of a serach need not be included in the ITO. These decisions are better considered as part of the inquiry into whether the search was conducted in a reasonable manner. This is supported by the fact that the statutory form used for an ITO, Form 1, makes no reference to the manner of execution: R v Rutledge, 2017 ONCA 635 at para 22
Facial Validity of Warrant
In order to be facially valid, it is fundamental that a warrant contain an adequate description of: 1) the offence; 2) the place to be searched; and 3) the articles to be seized: R v Ting, 2016 ONCA 57 at para 50; R v Saint, 2017 ONCA 491
1) The Place to be Searched
Without an adequate description of the place to be searched, a warrant is invalid because: 1) the issuing justice cannot be assured that s/he is not granting too broad an authorization, or an authorization without proper reason; 2) the police officers called on to execute the search warrant would not know the scope of their search powers; and 3) those subject to the warrant would be left in doubt as to whether there is valid authorization for those searching their premises: see Ting; Saint at para 7
Just what constitutes an adequate description will vary with the location to be searched and the circumstances of each case.
With respect to a multi-unit, multi-use building, as seen in this case, the description must adequately differentiate the units within the building: R v Ting, 2016 ONCA 57 at paras 48-51
It is not enough for the ITO to accurately describe the premises to be searched. For a search warrant to fulfill its functions, those who are relying on it – including police officers who are executing it and third parties whose cooperation is sought – must not be required to look past the warrant to the ITO: R v Ting, 2016 ONCA 57 at paras 59-60
The inadequacy of the warrant is not remedied by the fact that the police nonetheless executed the warrant at the correct residence, because in such circumstances they may be guided by their personal knowledge of the premises to be searched, not by the warrant itself: R v Ting, 2016 ONCA 57 at para 61
If police enter the wrong premises based on a facially invalid ITO, and then promptly leave, the intiial entry does not preclude obtaining a second warrant properly identifying the premise to be searched. If, however, they remain and search the premises and remain present until a second warrant is obtained, the second warrant is invalid: R v Ting, 2016 ONCA 57 at paras 54-55
The date of execution of a warrant
A non-expiring warrant would undermine the purposes for the warrant requirement in the first place: facilitating meaningful judicial pre-authorization; directing and limiting the police in the execution of the search; and allowing occupants to understand the scope of their obligation to cooperate with the search.
There is an implied requirement that warrants be executed within a reasonable time of being issued. Warrants that are not executed within a reasonable time, whether because of delayed execution or because an unreasonable time frame is expressly authorized by the warrant, have long attracted judicial disapprobation: R v Saint, 2017 ONCA 491 at para 9
Where, howwever, the Information to Obtain requested a warrant to permit police to enter the residence on a specific day, and the warrant was on that day, and no other date appears on the warrant, it is implicit that the warrant that was sought was intended to be executed on the day it was issued. In such a circumstance, the date of issuance stated on the warrant is also the date for execution: an express specification of the date for execution would be superfluous: Saint at para 19
See, for example, R v Malik, 2002 BCSC 1731, where the Crown conceded that a warrant that similarly authorized a search “at any time” was open-ended and therefore invalid, and that a search conducted two days after the warrant was issued violated s. 8 of the Charter;
But see also R v Shivrattan, 2017 ONCA 23. In that case, and in the context of assessing the reasonableness of a nighttime search pursuant to a CDSA warrant, Doherty J.A. interpreted “at any time” in s. 11 of the CDSA as obviating the need for special justification for execution after 9:00 p.m. for warrants issued under the Criminal Code, as required by s. 488 of the Criminal Code.
Amplification of the Warrant
When a reviewing judge determines whether the warrant could have been issued, s/he may be permitted to rely on “amplification evidence”, which is additional evidence presented at the voir dire.
The limitations to the use of amplification evidence include that: 1) it is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds; 2) It cannot be used to provide evidence that was not known to the police at the time the ITO was sworn; 3) it is to be used only to correct “some minor, technical error in the drafting of the affidavit material” so as not to “put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made” such errors: R v Ting, 2016 ONCA 57 at paras 63-64, 70
Excising the Warrant
A reviewing judge has no jurisdiction to excise correct information from an affidavit: R v Min Mac, 2016 ONCA 379 at para 59
Reasonable Grounds to Believe
Reasonable grounds can be based on a reasonable belief that certain facts exist even if it turns out that the belief is mistaken: R v Robinson, 2016 ONCA 402 at para 40. But, for example, see R v Brown, 2012 ONCA 225, in which two officers with the same information arrived at different conclusions as to the existence of reasonable grounds
A trial judge has residual discretion to set aside a search warrant, despite the presence of reasonable and probable grounds for its issuance, where the judge is satisfied that the conduct of the police has been subversive of the pre-authorization process leading to the issuance of the search authority. However, the threshold is high. Subversion requires an abuse of the pre-authorization process by non-disclosure or misleading disclosure or their like: R v Paryniuk, 2017 ONCA 87, at paras. 62-74.
Testing the Evidence at Trial: Cross examination of affiant
Standard of Review:
Absent error in law, a failure to consider relevant evidence, a material misapprehension of evidence, or an unreasonable factual finding, the appellate court must defer to the trial judge’s assessment of the effect of the cross-examination on the sustainability of the authorization: R v Hall, 2016 ONCA 013 at para 52-53
The court must also defer to the findings of fact made by the reviewing judge in his or her assessment of the record, as amplified on review, as well as to his or her disposition of the s. 8 Charter challenge: R v Min Mac, 2016 ONCA 379 at para 34
The task for the reviewing judge is to determine whether on the supportive affidavit, as amplified by evidence adduced on the review, there was sufficient reliable evidence that might reasonably be believed on the basis of which the authorizing judge could have concluded that the probable cause requirement had been met: R v Min Mac, 2016 ONCA 379 at para 29
General Principles
The cross-examination of the affiant may be intended to show either that: 1)there were misleading facts or omissions in the affidavit, which should be excised or amplified; OR 2) the informant was not credible or reliable, therefore requiring that all of the information s/he provided must be disregarded: R v Hall, 2016 ONCA 013 at paras 50-51. See example of intentional and grossly negligent police misconduct in drafting afidavit: Hall at paras 43, 65
Cross-examination of the affiant may occur where the accused shows that the proposed cross-examination will elicit testimony that tends to discredit the existence of a pre-condition to the issuance of the warrant, as for example, reasonable and probable grounds: Min Mac at para 27
Testing the Evidence at Trial: Garafoli Applications
Review of principles and procedure to be applied on a Garafoli Application: R v Beauchamp, 2015 ONCA 260 (where underlying charge was conspiracy); R v Crevier, 2015 ONCA 619
The Test
The test is whether the information in the affidavit or ITO, considered as a whole, constitutes sufficient reliable evidence that might reasonably be believed on the basis of which the relevant search authority could have issued: R v Nero, 2016 ONCA 160 at para 126
The Standard of Review
The standard of review on appeal is one of deference to findings of fact made by the motions judge. Absent a demonstrated misapprehension of the evidence, a failure to consider relevant evidence, a consideration of irrelevant evidence, an unreasonable finding or an error of law in the application of the governing principles, the appellate court will not interfere with the decision of the motions judge: Nero at para 124
Excising Information
A reviewing judge has no jurisdiction to excise correct information from an affidavit: R v Mac, 2016 ONCA 379 at para 59
Electronic Searches (mobiles and computers)
It cannot be assumed that a justice who has authorized the search of a place has taken into account the privacy interests that might be compromised by the search of any computers or mobile communication devices that might be found within that place: Nero at para 157
A computer search requires specific pre-authorization. If police intend to search computers or mobile communication devices found within a place with respect to which they seek a warrant, they must satisfy the authorizing justice, by information on oath, that they have reasonable grounds to believe that any computer or other mobile communication device they discover will contain the things for which they are looking: Nero at para 158-159
Notice Requirements
A search warrant can include a statutorily-mandated requirement to inform the recipient of the existence and execution of the warrant within 180 days after the warrant’s execution: R v Coderre, 2016 ONCA 276 at para 2
The requirement of after-the-fact notice casts a constitutionally important light back on the statutorily authorised intrusion because s. 8 protects an “ability to identify and challenge such invasions, and to seek a meaningful remedy.”
The failure to abide by a statutorily-mandated requirement to provide notice fails to give effect to those protections and, therefore, infringes the Charter: Coderre at para 13
Warrantless Searches
Safety Searches
It is only when police officers have reasonable grounds to believe that there is an imminent threat to their safety that it will be reasonably necessary to conduct such a search: R v Jupiter, 2016 ONCA 114 at para 1
Where officers decide to conduct a “safety” search before they arrive at a place and regardless of what happens when they get there, that predetermination by the officers, while not conclusive as to the propriety of the safety search, goes a long way in support of a conclusion that the safety search cannot be justified on the basis of a reasonable apprehension of imminent harm: Jupiter at para 2
For an extensive review of general principles governing the authority for police to conduct a safety search incidental to an investigative detention, particularly pursuant to a 911 call, see R v Lee, 2017 ONCA 654 at paras 27-43. See especially the concurring reasons of Pardu J beginning at para 72.
Exigent Circumstances
The Right to Privacy in One's Home
The s. 8 right to be secure against unreasonable searches protects a person’s expectation of privacy from state intrusion. Nowhere is that expectation of privacy higher than in one’s home. To enter a home, police ordinarily need previous authorization: a warrant. Warrantless entries of a home are presumed to be unreasonable and in breach of s. 8. However, statutory and common law exceptions exist: R v Davidson, 2017 ONCA 257 at paras 2-21
Under the Controlled Drugs and Substances Act
Exigent circumstances under s. 11(7) of the CDSA exist if: 1) the police have grounds to obtain a search warrant under s. 11 of the CDSA (the probable cause requirement); and 2) the police believe, based on reasonable grounds, that there is imminent danger that evidence located in the premises will be destroyed or lost, or that officer or public safety will be jeopardized if the police do not enter and secure the premises without delay (the urgency requirement): R v Phoummasak, 2016 ONCA 46 at para 12: R v Paterson, 2017 SCC 17 at para 37
Evidence that the police had grounds to obtain a search warrant, but instead proceeded with other investigative measures, can in some situations afford evidence that the police set out to create exigent circumstances to justify entry into a premise without a warrant: R v Phoummasak, 2016 ONCA 46 at paras 14-16
Under the Child and Family Services Act
Under s. 40(2), a child protection worker may obtain a warrant to seize a child from a home if reasonable and probable grounds exist to show the child is in need of protection and a less restrictive course of action will not protect the child adequately. Section 40(7) authorizes a child protection worker to enter a home without a warrant to bring a child to a place of safety, but only if two conditions are met. The child protection worker must believe on reasonable and probable grounds that:
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The child is in need of protection; and
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There would be a substantial risk to the child’s health or safety during the time needed to obtain a warrant or to bring the matter on for a hearing.
Section 40(11) supplements s. 40(7) and provides that if necessary the child protection worker can enter a home by force to search for and remove a child. Section 40(13) provides that a police officer has the same powers as does a child protection worker under s. 40(2), (7) and (11): R v Davidson, 2017 ONCA 257 at paras 38-42
Under the Criminal Code
Under s. 529.3 of the Criminal Code, the police may enter a home without a warrant to arrest or apprehend a person if the conditions for obtaining a warrant exist but “exigent circumstances” – that is, urgent or pressing circumstances – make it impractical to obtain one. The Code includes among exigent circumstances those where the police have reasonable grounds to suspect entry into the home is necessary to protect a person’s imminent harm or death, or to prevent the imminent loss or destruction of evidence: R v Davidson, 2017 ONCA 257 at para 21
At Common Law
The police have a common law duty to protect a person’s life or safety and that duty may, depending on the circumstances, justify a forced, warrantless entry into a home. For example, when the police receive a 911 call they have authority to investigate the call, which can include a warrantless entry into a home to determine whether the caller is in need of help. The police must, however, reasonably believe that the life or safety of a person inside the home is in danger. And once inside the home, their authority is limited to ascertaining the reason for the call and providing any needed assistance. They do not have any further authority to search the home or intrude on a resident’s privacy or property: R v Davidson, 2017 ONCA 257 at paras 22-27
In Davidson, the Court of Appeal found that the police warrantless entry into the home was not justified by exigent circumstances. The entry was therefore unlawful and the evidence discovered as a result of that entry, drugs, was excluded.
Motor Vehicle Searches
Where the police conduct a valid HTA stop and thereafter legitimately form reasonable and probable grounds to arrest and search a vehicle, the fact that the police had a dual HTA/criminal purpose at the very outset of the stop does not taint the lawfulness of the initial stop and detention: R v Johnson, 2016 ONCA 31 at para 9
The police decision to call a tow truck to remove a vehicle does not justify an inventory search in every case: R v Harflett, 2016 ONCA 248 at para 29-30
Border-Searches
Persons arriving at the border have a reduced expectation of privacy. Because of individuals' reduced expectation of privacy at the border, section 8 is not engaged by routine questioning and luggage searhes: R v Johnson, 2016 ONCA 31 at paras 16, 23
Section 8 is not engaged by a routine dog-sniff search at the border, which falls within the catgory of routine border-searches that attract no reasonable expectation of privacy: R v Johnson, 2016 ONCA 31 at paras 22, 24-26. However, a dog-sniff search that is specifically targeted towards a suspect at the border is distinguishable and may engage s.8 of the Charter: R v Johnson, 2016 ONCA 31 at para 27
Manner of Execution of a Search
In an assessment of the manner in which a search has been executed, a reviewing court balances the rights of suspects, on the one hand, with the requirements of safe and effective law enforcement, on the other.
Police decisions about the manner in which a search will be carried out fall to be adjudged by what was or should reasonably have been known to them at the time the search was conducted, not through the lens of how things turned out to be. Police are entitled to some latitude on how they decide to enter premises under a warrant. Omniscience is not a prerequisite for a search to be conducted in a reasonable manner: R v Rutledge, 2017 ONCA 635 at paras 25-26
Production Orders
Challenging a Production Order
The Test
The enabling warrant or order is presumed to be valid, but this presumption is rebuttable: R v Nero, 2016 ONCA 160 at para 68
Standing to Challenge
In Jones, the Court of Appeal upheld the trial judge's decision that the accused did not have standing to challenge a production order against a third party in which the police seized text messages the accused sent to that party: R v Jones, 2016 ONCA 543 at paras 14-18. In Marakah, 2016 ONCA 542, the court came to the same conclusion, with a dissenting opinion from from LaForm J. The court reasoned that, once a text message reaches its intended recipient, there is no longer any reasonable expectation of privacy in the sender. This is because the message is no longer under the control of the sender; it is under the complete control of the recipient to do with it what he/she wants. Accordingly, the appellant’s expectation of privacy in his text messages on another's phone was not objectively reasonable.
General Principles
Like the authorizing justice, the reviewing judge is entitled to draw reasonable inferences from the contents of the ITO. That an item of evidence in the ITO may support more than one inference, or even a contrary inference to one supportive of a condition precedent, is of no moment: Nero at para 71
Inaccuracies and omissions in the ITO are not, without more, fatal to the adequacy of the material to establish the necessary conditions precedent: Nero at para 72
The judge may consider documents relating to the order or warrant, any additional evidence adduced at the hearing and the submissions of counsel. The review requires a contextual analysis of the record: Nero at paras 67-68
Hearsay statements of a CI can provide reasonable and probable grounds to justify a production order: Nero at para 75
Corroboration is not required on every single detail, but the ITO should describe efforts to confirm the credibility and reliability of the source: Nero at para 76.
Appeal
On appeal, deference is owed to the findings of fact made by the reviewing judge in his assessment of the record, as well as to his disposition of the s. 8 Charter challenge. In the absence of an error of law, a misapprehension of material evidence or a failure to consider relevant evidence, the appellate court should not interfere: Nero at para 74
The test or standard a reviewing judge is to apply is whether the ITOs contained sufficient reliable evidence that might reasonably be believed on the basis of which the authorizing justice could have concluded that the conditions precedent required to be established had been met: Nero at paras 66, 69, 70
Number Production Warrants
The principles governing review of production orders are applicable to the review of number production warrants: Nero at para 69
Interception of Private Communications: Section 186(1)
The acquisition of historical text messages does not constitute an intercept: R v Jones, 2016 ONCA 543 at paras 20-36
The Test
There are two conditions precedent required to grant an authorization to intercept private communications: 1)that it would be in the best interests of the administration of justice to do so ("probable cause"); and 2)that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures ("investigative necessity"): R v Nero, 2016 ONCA 160 at para 114
The Probable Cause Requirement
The probable cause requirement demands reasonable and probable grounds to believe that: 1)a specified crime, and “offence” as defined in s. 183(1) of the Criminal Code, has been or is being committed; and 2)the interception of the private communication sought will afford evidence of the, or an, offence for which authorization is sought. The analysis must involve a common sense approach that takes into account that the subject matter of the investigation is future communications, not yet in existence: Nero at paras 115-116
The Investigative Necessity Requirement
The investigative necessity requirement does not dictate that interception of private communications is an investigative tool of last resort. This factor is met where, practically speaking, there is no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry: Nero at paras 118-122
Whether investigative necessity is established is informed by the investigative objectives pursued by the police. The requirement may be met where an investigative objective is to obtain evidence confirmatory of information provided by a source whose testimony is not available through no fault of or connivance by the authorities, or is subject to special scrutiny. The requirement applies to the investigation as a whole, not to each individual target. The supportive affidavit need not demonstrate investigative necessity on an individual target basis
The police have have more need for wiretapping where they are trying to move up the chain and catch the higher-ups in the operation. However, the fact that wiretap authorization might inevitably be required because of the nature of the activity being investigated does not excuse the police from the obligation to establish a firm evidentiary foundation for the authorization through the use of less intrusive methods of investigation: R v Mac, 2016 ONCA 379 at paras 39-40
See also R v Beauchamp, 2015 ONCA 260, at paras 115-129; R v Telus, 2013 SCC 15
See generally R v Duarte, [1990] 1 SCR 30, which deals with the simultaneous interception of voice communication by the state.
"Known" persons under s. 185(1)(e)
Section 185(1)(e) of the Criminal Code enacts the standard for including persons as “known” in the supportive affidavit. The standard is a modest one:
The threshold for describing a person as a “known” in the supportive affidavit is a modest one. Investigators need not have reasonable and probable grounds to believe that the person was involved in the commission of an offence being investigated. Provided investigators know the identity of the person and have reasonable and probable grounds to believe that the interception of that person’s private communications may assist the investigation of an offence, that person is a “known” for the purposes of s. 185(1)(e).
The Standard of Review
The standard of review on appeal is one of deference to findings of fact made by the motions judge. Absent a demonstrated misapprehension of the evidence, a failure to consider relevant evidence, a consideration of irrelevant evidence, an unreasonable finding or an error of law in the application of the governing principles, the appellate court will not interfere with the decision of the motions judge: Nero at para 124