Investigative Powers

Question 1

The most commonly used statutory search power is

Answer 1

section 487 of the Criminal Code which provides issuance of a warrant that authorizes the search for and seizure of evidence

Question 2

Search powers are governed by which section of the Charter?

Answer 2

Section 8, the right to be sevure against unreasonable search and seizure

Question 3

Section 8 protects what kind of privacy?

Answer 3

The reasonable expectation of privacy

Question 4

What are the characteristics that determine whether a search and seizure is unreasonable?

Answer 4

A reasonable search is one that has been:
- authorized by law
- the law itself is reasonable
- the manner in which the search is carried out is reasonable

Question 5

If a violation of CHarter section 8 is established, evidence discovered in the unlawful search may still be admissible when considered

Answer 5

on the standard of whether the admission of the evidence would bring the administration of justice into disrepute (section 24(2) of the Charter)

Question 6

A search without prior judicial authorization is

Answer 6

presumptively unreasonable

Question 7

What is used to obtain a warrant

Answer 7

The police officer’s information to obtain- the affidavit sworn in support of the application for a search warrant

Question 8

A police officer’s information to obtain must contain:

Answer 8

• description of the offence that is the subject of the investigation
• description of the evidence to be seized
• the location fo be searched
• the three former elements to establish reasonable grounds on the standard of credibly based probability

Question 9

A warrant may indicate that it is to be executed by

Answer 9

a peace officer or a public officer

Question 10

A peace officer includes

Answer 10

• mayor, warden, reeve, sheriff, deputy sheriff, sheriff;s officer or JoP
• member of Correctional Service of Canada designated as a peace officer
• police officer, constable, bailiff, other person employed for the preservation and maintainence of public peace
  -designated officer as defined for cross border law enforcement, Immigration, Fisheries act, officers and non-commissioned members of the Canadian Forces

Question 11

Public officer includes

Answer 11

• officer of customs
• officer of Canadian Forces
• officer of RCMP
• officer engaged in enforcing laws relating to revenue, customs, excise, trade or navigation

Question 12

What are the procedural rules for the execution of a search warrant?

Answer 12

• the po must have the warrant in their possession at the time of the search
• a demand to open must be made before entry is forced. Where there is a need to ensure that no evidence is destroyed, announcement may not be required
• the officer executing the warrant must exhibit the warrant for inspection if asked to do so
• the officer may use no more force than is reasonably necessary to effect any entry or search.

Question 13

What is the required timing of execution of a search warrant?

Answer 13

must be executed during the day which is defined by the Code as between 6am and 9pm. The issuing justice may authorize the warrant to be executed at night (9pm-6am) if they are satisfied that there are reasonable grounds for executing it at night

Question 14

What kind of warrant allows for execution at any time?

Answer 14

A warrant issued under the CDSA

Question 15

What can be seized under a warrant?

Answer 15

anything that the person conducting the search has reasonable grounds to believe has been obtained by or has been used in the commission of an offence.

Question 16

Does paralegal client privilege exist?

Answer 16

Not as an outright protected class, but on a case by case basis as established in Chancey v Dharmadi, where the Wigmore criteria were applied to find that paralegal client privilege exists on a case by case basis

Question 17

What is the Wigmore test?

Answer 17

The test as to whether or not a communications is privileged:
- the communications must originate in a confidence that they will not be disclosed
- this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties
- the relation must be one which in the opinion of the community ought to be sedulously fostered
- the injury that woud be inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation

Question 18

Warrants may be issued for other searches/requirements for information including:

Answer 18

• wiretaps
• blood samples
• DNA samples
• bodily impressions
• general warrants
• tracking devices
• transmission data recorders

Question 19

What is the process of reviewing warrants?

Answer 19

• making an application to quash
• launching a charter violation under section 8 and 24(2)

Question 20

What are the exceptions to institutions disclosing information under FIPPA?

Answer 20

• consent by the person to whom the information relates
• disclosure made to an institution or law enforcement agency in Canada to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforement proceeding is likely to result
• disclosure made by a law enforcement institution to a law enforcement agency in a foreign country under an arrangement, written agreement, or treaty or legislative authority
• disclosure made by a law enforcement agency to another law enforcement agency in Canada

Question 21

What are the conditions that must be met for a cellphone search to be compliant with Section 8 of the Charter?

Answer 21

• the arrest must be lawful
• the search must be truly incidental to the arrest
• the nature and the extent of the search must be tailored to its purpose
• the police must make detailed notes of what they examined and how they examined the device

Question 22

What is an investigative detention?

Answer 22

occurs when the police stop and question a person in the absence of reasonble and probable grounds to believe that the person has committed an offence but with a reasonable justification related to the safety of the public

Question 23

When detained, the detainee must be advised of

Answer 23

the right to counsel right away

Question 24

What is the plainview doctrine?

Answer 24

a common law doctrine that applies to searches without a warrant, allowing an officer to seize evidence that is found in plain view.

Question 25

What are the three requirements of the plain view doctrine?

Answer 25

• the police officer must be lawfully authorized to be in that area
• the nature of the evidence must be immediately apparent as constituting a criminal offence
• the evidence must have been discovered inadvertently

Question 26

What are the two main categories of evidence that can be compelled?

Answer 26

Data and documents

Question 27

Failure to comply with a production order may attract a max penalty of

Answer 27

$250,000 or imprisonment for two years less a day, or both

Question 28

Failure to comply with a preservation demand under section 487.012 may attract a max fine of

Answer 28

$5,000

Question 29

Failure to comply with a preservation order under s487.013 may attract a max penalty of

Answer 29

$250,000 or imprisonment for two years less a day or both

Question 30

What are the factors considered by the court when determining whether a statement was made voluntarily?

Answer 30

• whether the statement was given in response to any inducements or threats
• whether the accused had an operating mind at the time the statement was made
• whether the accused was subjected to any oppressive circumstances
• whether there was any trickery used by the person in authority in eliciting the statement

Question 31

There is no obligation for the police to stop the interview and permit further contact with counsel per 10(b) unless:

Answer 31

• there is a change in the jeopardy/charge facing the detainee
• there are new procedures involving the detainee that require further legal advice
• there is reason to believe that the detainee may not have understood the initial legal advice