Arrested at Home (Part 2): Consent
Police are required to obtain
prior judicial authorization in the form of a warrant to enter a dwelling house
for the purpose of carrying out an arrest.
See
Stuart O’Connell Law Blog, Arrested at
Home: Feeney Warrants, www.stuartoconnell.blogspot.ca/2017/11/arrested-at-home-feeney-warrants.html
See
R v. Feeney, 1997 CanLII 342 (SCC);
Sections
529-529.5, Criminal Code (“Feeney
warrants”).
There are three
well-established exceptions to this constitutional and statutory requirement:
a.
hot
pursuit,
b.
exigent circumstances,
and
c.
consent.
Today’s blog deals with the
exception of consent.
Absent a recognized
exception, a warrantless entry by the police into a dwelling house will violate
section 8 of the Charter, as it constitutes an unreasonable search within the meaning of that
provision. State intrusions into the
home strike at an aspect of personal privacy which has always held a special
place in the law: R. v. Golub (1997), 1997 CanLII
6316 (ON CA). As such, unauthorized
intrusions into the home constitute serious constitutional violations.
In Canada, there are no
legislative provisions that authorize warrantless searches on consent. Consensual
searches are, however, permissible at common law (Young v. Ewatski (2012), 2012 MBCA 64 (CanLII), at para. 54), a
common law which has adjusted to comport with the constitutional status of
privacy.
A search will not be
unreasonable under section 8 of the Charter where the individual has consented
to the state intrusion upon his or her privacy.
R.
v. Wills (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 (Ont. C.A.), at p. 541 (passage approved in R. v. Borden,
1994 CanLII 63 (SCC), [1994]
3 S.C.R. 145, at para. 34;
R.
v. R.M.J.T., 2014
MBCA 36 (CanLII), at para. 46;
R.
v. Simon, 2008
ONCA 578 (CanLII), at para. 48.
To constitute a valid
waiver of the s. 8 Charter right, consent must meet a high standard – it
must be consent which is fully informed
and meaningful.
R.
v. Bergauer-Free, 2009 ONCA 610 (CanLII), at
para. 53;
R.
v. Simon, at para. 49;
R. v. Wills [(1992), 1992 CanLII 2780 (ON
CA);
R. v. M.C.G. 2001 MBCA 178 (CanLII).
The validity of a waiver
is a fact-bound inquiry.
The Crown bears the burden
of demonstrating that any waiver relied on by the Crown is in all of the
circumstances an effective and informed waiver of an individual’s s. 8 rights.
R. v. Simon,2008 ONCA 578 (CanLII), at para. 49.
Courts will be slow to
infer a waiver of one’s section 8 right, particularly where the individual who
is said to have waived his or her rights is detained and is the target of a
criminal investigation.
Ibid.
Consent must come from the right person
Section 8 is available to
confer standing on an accused person who had a reasonable expectation of
privacy in the premises where the search took place.
R. v. Pugliese (1992),1992 CanLII 2781 (ON CA);
See R. v. Edwards,
1996
CanLII 255 (SCC) for
section 8 standing in relation to privacy interests territorial in nature;
Everett
v. McCaskill, 2015
MBCA 107 (CanLII), at para. 76 (leave
to appeal refused [2016] S.C.C.A. No. 44).
If the accused cannot
demonstrated a reasonable expectation of privacy, his/her section 8 Charter rights are not engaged. The accused
will therefore lack the standing to challenge the constitutionality of the
search (ie. the entry of the police into the dwelling house without a warrant),
including the validity of consent.
Requirements for Valid Consent
In R. v. Wills (1992), 1992 CanLII 2780 (ON
CA), Doherty J.A. listed six factors which the Crown must establish on
the balance of probabilities for a finding that an individual waived his or her
right to be secure against an unreasonable search or seizure:
(i)
there was
a consent, express or implied;
(ii)
the giver
of the consent had the authority to give the consent in question;
(iii)
the
consent was voluntary and was not the product of police oppression, coercion or
other external conduct which negated the freedom to choose whether or not to
allow the police to pursue the course of conduct requested;
(iv)
the giver
of the consent was aware of the nature of the police conduct to which he or she
was being asked to consent;
(v)
the giver
of the consent was aware of his or her right to refuse to permit the police to
engage in the conduct requested, and
(vi)
the giver
of the consent was aware of the potential consequences of giving the consent.
In short, waiver presupposes
a voluntary informed decision to pick one course of conduct over another.
Knowledge of the various options and an appreciation of the potential
consequences of the choice made are essential to the making of a valid and
effective choice.
Real consent is not simply
acquiescence or compliance.
Wills, at p. 541;
R.
v. Atkinson, 2012
ONCA 380 (CanLII), at para. 49.
The police are not
entitled to rely on a bona fide mistaken belief in consent to justify a
warrantless search.
See
R. v. Mascoe, 2017 ONSC 4208
(CanLII), at para. 139.
Stuart
O’Connell, O’Connell Law Group, www.leadersinlaw.ca
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