Chapter 2 Flashcards
What is section 8 of the charter?
The right to be protected against unreasonable search and seizure
- is concerned with preventing unjustified state intrusions into the privacy of individuals
- requires that the person granting the search warrant have the discretion to decide whether or not to issue a warrant
What is unreasonable search and seizure?
A search or seizure which does not meet the constitutional standards for a valid search and seizure
What is prior authorization?
Permission granted by a judicial authority in advance to authorize some action such as a search and seizure. This is generally the minimum requirement for a valid search.
- when feasible police require prior authorization (i.e a search warrant)
What is a search warrant?
Permission given by a judicial authority for the conduct of a search and or seizure
What does it mean when we talk about a person who is capable of acting judicially?
A judicial or quasi-judicial authority able to act in a neutral and impartial manner.
- ex. Justice of the Peace, Judge, Magistrate
What is a judicial decision?
A decision made after considering and weighing the evidence presented, and determining whether it meets, the required legal standard
What do we mean when we say reasonable grounds to believe?
Reasonable grounds to believe is the typical pre-requisite for an arrest or search warrant. There must be objectively justifiable grounds to believe the accused committed an offence or that evidence will be found in the location to be searched
What is an information to obtain?
A document prepared and sworn by the person seeking a search warrant, setting out the grounds for believing that the evidence sought of the offence alleged will be found in the location targeted
What is discretion?
Authority is not bound to an act, can choose not to do so
What is the Edwards Case?
Discusses the totality of circumstances
- the analytical framework for establishing reasonable expectation of privacy that must be adjusted to the circumstances
- SCC found that the boyfriend had no reasonable expectation of privacy in his girlfriends apartment
- sets out what counts as a reasonable expectation of privacy
What are Section 487 Warrants?
A warrant that offers for a limited time, the search and seizure of a specific location
- The person signing off the warrants needs to be sure that there are reasonable grounds to believe something is there that would be helpful in terms of evidence
- section 487 warrants can also be issued for anticipated offences
- this warrant also sets out what the officers or persons conducting the search can seize or search
- this section does not allow for the seizing of bodily substances
What is a reasonable expectation of privacy?
The normative standard applied in determining whether there exists a privacy right to be protected
What is a telewarrant?
A type of search warrant which may be obtained over the telephone, in circumstances where it is impractical to obtain a warrant in person
What are production orders?
An order from a justice or judge to compel a person (other than one under investigation) produce documents or to prepare documents from existing data
- used when we require that another body to give us records of some type
- not required if the person voluntarily gives out the information
Ex. Phone Records
What is a perimeter search?
A search of the outside of a dwelling house and its surroundings, sometimes used in an attempt to secure sufficient information to support an application for a warrant to search the house itself
- violate section 8 of the Charter
What is a search incidental to arrest?
The common law power of a peace officer to search a person who is taken into custody for weapons (for protection) or evidence
- must be related to the purpose of the arrest
What is plain-view?
A doctrine whereby a police officer lawfully on premises may seize without warrant any evidence of a crime which is discovered in plain view
- not a power to search but a power to seize
What continues to challenge the reasonable expectation of privacy?
Technological Developments
How do Canadian courts determine whether a search violated an individuals privacy?
They ask the complainant what constitutes as a reasonable expectation of privacy regarding what was searched
What is an amplification hearing?
Wherein the trial judge will review the broader circumstances surrounding issuance of the search warrant
DNA and Bodily Impression Warrants fall under what section?
- 04 to 487.091
- provide a code of procedure to be followed in the taking of DNA samples for certain designated offences, their analysis and the retention or destruction of the information
- there are subsections that do allow peace officers to obtain bodily substances under certain conditions for investigative purposes which does not violate the Charter of Rights and Freedoms
To be protected by section 8 the information must be what?
Personal and the confidential nature that might reflect intimate details of the lifestyle and personal choices of the individual
What is a knock-on?
A police approach when something was suspicious to knock on the door
- SCC found this as a search and therefore was a violation of section 8
What is section 9 of the Charter?
Not to be arbitrarily detained 2
What can officers ask when it comes to operating a motorised vehicle?
They can ask questions regarding sobriety and the mechanical condition of the vehicle, and the driver to provide their license and insurance
Can you be searched during investigative detention?
Police are allowed to detain persons for investigative purposes if they have reasonable grounds to detain
- based on an officer’s reasonable suspicion
- the search must be reasonably necessary in light of the totality of the circumstance
- should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police
