Romaniuk's
Search Warrants Considered

The Use of Statements Made by the Accused

• The applicant for a search warrant must swear/affirm, in the text of the ITO, that the statement made to persons in authority was made after the accused was given:
  
  
  1. his Charter rights; and
  2. access to counsel; or declined the right to do so.
     
     
  3. If the foregoing requirements have not been complied with then the search warrant should not (or could) have issued
     [Allen, B.J.; {para 5}; ABCA, Anderson, B.L.; (1990) 84 SaskR 299; SKQB, Campbell, D.B.; {paras 49-51}; MCA, Lam, H.D.; {para 33}; BCCA, LeBlanc, E.J.#1; {para 56}; ABQB, Kiloh, K.B. #2; {paras 11 and 16}; BCSC, Michaud, N.; {paras 32-54}; OCJ, Murray, D.; {para 110}; OSCJ, Ricketts, D.; {paras 14 and 18}; OCA, Sonne, B.; {para 17}; OSCJ and Weibe, R.A.; {paras 61 - 63}; ABPC].
  4. The statement must also have been made voluntarily
     [Ye, M.F.L.; {para 40}; OSCJ].
  
  
• Note: authorities have to take special care to ensure that youths understand their right to have a parent and/or counsel present during questioning. The situation varies with the circumstances
  [L.T.H.; {paras 4 and 18}; SCC].
• "Although I form no conclusion at present, it may be that where a General Warrant is being sought for investigative purposes and suspects or accused persons have had dealings or discussions with the police after the alleged offence has occurred, full and frank disclosure, and proper consideration of s. 487.01(1)(b) concerning the best interests of justice, necessitates that the Information make reference to whether rights to counsel or other Charter rights have been complied with prior to obtaining a statement or otherwise interrogating them {para 37}
  [Criminal Code s. 487.01, Application of General Warrant; {paras 32-33}; SKPC]."
• Statements required of an accused by a legislated duty and made in the course of that duty cannot be used in an ITO, unless the accused was given his Charter warning and access to counsel prior to giving the statement. Otherwise the search warrant should not have issued
  [Jarvis, W.J.; {para 3}; SCC and Ling, C.K.; {para 32}; SCC].
• Government authorities, here a social worker, must "Charter caution" any person providing a confession, if that statement is to be admissible as evidence
  [Tom, E.; {paras 17 and 18}; BCSC]. Also review: [Choy, L.; {para 38}; ABQB].
• Persons in authority and employed by the government are "agents of the state," here a doctor, must "Charter caution" any person providing a confession, if that statement is to be admissible as evidence
  [MacDonald, A.; {para 27}; OSCJ].
• Telling the accused they had a statutory duty to bring incriminating items to a police station and then holding onto those items, and then applying for a search warrant to seize those items, without first advising the accused of their Charter rights is a breach of the accuseds' right to not self-incriminate themselves
  [Kooktook, S.; {para 77}; NUCA].
• "The state must have some justification for interfering with the individual and cannot rely on the individual to produce the justification out of his own mouth. Were it otherwise, our justice system would be on a slippery slope towards the creation of a police state {page 504}
  [S. (R.J.); SCC]."
• "... the law imposes no duty to speak to or cooperate with the police ... {para 55}
  [Turcotte, T.; SCC]."
• "... everyone has the right to be silent in the face of police questioning, even if he or she is not detained or arrested {para 55}
  [Turcotte, T.; SCC]."

Exceptions:

• Voluntary statements made by the accused can be used in an ITO
  [Hatch, D.; {para 91}; OSCJ].
  Voluntary statements made by the accused can trigger legitimate warrantless searches too. "The search was required not because of information extracted by officers from Mr. Allison but by information volunteered by Mr. Allison. Public safety issues required that Mr. Allison be searched as soon as he informed the officers that he had a gun {para 69}
  [Allison, D.B.; 2011 CarswellOnt 11698, [2011] O.J. No. 1072, 2011 ONSC 1459; OSCJ].
• When the accused tells the police one thing, and then testifies to another at the trial of a co-accused, that gives rise to an inference that he has lied to someone. That in turn can give rise to an inference of criminal behaviour, and be grounds for obtaining a search warrant
  [Katzman, R.; {para 71}; SKQB].
  Review inferences.
• When the accused is an inmate, and where s. 43 of the Correction Centre Rules and Regulations authorizes the monitoring of prisoner's communications, and where the accused has signed an agreement acknowledging that his telephone calls will be monitored and recorded. Any telephone calls made are subject to a search warrant. Those calls will be admissible at trial
  [M.L.M.; {paras 76 and 77}; BCSC].
  S. 43 of the Correction Centre Rules and Regulations is now s. 14. If, however, the rules prescribed in the rules are not adhered too, that evidence will not be available for use in an ITO
  [Stubinski, D.J.; {para 16}; BCSC].

End of Use of Statements

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