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The Charter Applies When
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The police cannot enter a private home without permission (either the home owner's, someone authorized by the homeowner or a court's)
[Feeney, M.;
SCC].
Evidence gathered by authorities in a warrantless entry, with an intent to gather evidence, will not be admissible at trial
[Goncalves, H.;
SCC]
affirming the minority in
[Goncalves, H.M.;
ABCA].
This applies to other government authorities too. {In this instance a social worker who entered a private residence to
conduct a child welfare investigation without consent}
[D.G.W;
ABQB].
Review
informed consent to enter and
permission to enter.
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A search warrant authorizes a peace officer to commit an act that would otherwise be characterized as a trespass
[Pugliese, N.;
OCA].
Note: authorities are not allowed to trespass to obtain evidence for use in an
ITO.
Refer to the common law requirement of
no trespassing
page too.
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Permission to search a "dwelling" does not include the right to search the adjacent property
[Schmeidel, T.; [1920] 3 W.W.R. 23, 33 C.C.C. 110, 53 D.L.R. 1; {para 2};
ABSC].
- The following have the same privacy rights as residences:
-
Barns (on rural properties) -
[Le, C.T.; {para 16};
BCPC].
Contra: Garage / workshops - (on rural properties) - have a lesser expectation of privacy
[Ciachurski, A.T.; {para 64};
BCSC].
-
Computers - Personal - "It is difficult to imagine a search more intrusive, extensive, or invasive of one’s
privacy than the search and seizure of a personal computer {para 2}
[Morelli, U.P.;
SCC]."
-
Couriered packages -
"The [warrantless] search by Cst. Babakaiff violated the privacy right in the contents of the package, and it is hard
to see how a s. 8 right could be more seriously compromised {para 65}
[Washington, A.N. (2009);
BCSC]."
"In what I can only describe as a bizarre state of mind, both officers expressed the view that, because of their
certainty that the parcel contained marihuana, they concluded that the consignor of that parcel could have no
privacy interest in it and that no warrant was required, and they opened the parcel {para 11}
[Snider, P.M.;
BCPC]."
Both the sender and receiver have a privacy right in couried packages
[Fry; (1999) 142 CCC (3d) 166; {para 43};
NLCA].
Contra:
[Sanders, A. (No. 1);
OSCJ
and
Snow, F.J.;
NLSCTD].
-
Curtilage areas (an enclosed area that forms a part of a building) -
[Kyllo, S.B.;
BCSC,
aff'd as to this part of the ruling
Kyllo, S.B.;
BCCA].
-
Garages (attached)
[Noerenberg, R.;
OSCJ].
-
Garages (detached) - even if a search warrant for the residence has been issued
[LaPlante, R.E.;
SKCA].
-
Motorhomes - have the same privacy right as any residence
[Schugmann, F.G.;
OCJ].
However, "I accept that in certain circumstances a mobile home being used as a residence may have a greater
expectation of privacy attached to it than other motor vehicles. However, there is a significant distinction to be
drawn between a mobile home parked in a permanent location and one traveling on the highway. In the latter instance,
the expectation of privacy is no greater than any other motor vehicle {para 21}." A search incidental to arrest was
allowed
[Penton, R.D.;
NLPC].
-
Parkades - locked, private - while having a reduced privacy right, police cannot trespass into them
[Chomik, S.L.; {paras 48 and 61};
ABPC].
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Rental properties (here 'mini' storage facilities) -
[Talbot, C.A.;
BCSC].
-
Rented lockers (in a bus station) -
[Buhay, M.A.;
SCC].
-
Rooms -
- Boarding house rooms -
"It is important to stress, as Juriansz J.A. rightly acknowledged, that Mr. Campbell’s expectation of privacy in his
room within the townhouse is just as high as that of a resident of a single dwelling unit {para 15}
[Campbell, N.M.;
SCC].
- Hotel rooms -
[Wong, S.;
SCC
and
Mercer, B.; 70 C.C.C. (3d) 180;
OCA].
Distinguished: where the accused rented the room fraudulently - on a stolen credit card - there was no
reasonable expectation of privacy
[Millar, D.J.;
OCJ].
-
Shacks {privately owned} -
[Colet, F.;
SCC].
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Tractor Trailer sleeper units -
[Bolczak, P.;
MQB,
Higgs, S.R.;
MPC
and
Sadeghi, D.; {paras 50 and 63};
SKQB].
"Nevertheless, the level of expectation [of privacy] is necessarily low because the cab of a tractor-trailer rig is not only a
place of rest but a place of work, and the whole of the cab is therefore vulnerable to frequent random checks in relation to
highway transport matters {para 31}." Hence if the trucker is caught in violation of transportation legislation that allows
for mandatory inspections and searches there is no expectation of privacy
[Nolet, R.;
SCC].
Also review
[Fiddler;
BCSC].
-
Trailers -
- House
[Plamondon, K.R.;
BCCA
and
- U-Hauls
[Binning, M.S.;
BCSC].
-
Storage rooms
- belonging to the occupant of an apartment located in another part of the building. Here the storage
room was in the basement, three floors down - the room is included in a search warrant to search the dwelling house
[Drascovich; [1927] 3 W.W.R. 40, 48 C.C.C. 401;
MCC].
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Vacant land
- belonging to the accused person
[Pellerin, L.; {pages 2 and 3};
NBCA].
-
Washroom stalls
- in toilet facilities available to the public
[Kane; {para 10};
ABQB
and
Pottle, M.E.;
BCSC].
However, if the door to the stall is ajar, there is no privacy expectation
[Seed, L.;
BCSC].
-
Workplace lockers
- provided by an employer
[Meyers; {paras 32-33};
ABQB].
- The definition of "dwelling house" is at
s. 2 CC. It includes mobile homes.
-
Private residences - in a building the police are searching suspecting that a crime may have been committed
[Tymensen, A.D.;
ABPC];
or in buildings that police have a search warrant for (they did not realize there was a private residence within the building
when they applied for the warrant, and kept searching when they discovered it)
[Park, S.; 2007 CarswellOnt 6528;
OSCJ].
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Applicants cannot damage property to obtain evidence for an
ITO
(here to view the interior of the property)
[Talbot, C.A.;
BCSC].
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Applicants cannot use evidence obtained on an arrest, and on entry to a dwelling house, where a Feeney Warrant was not first obtained, in an
ITO
[Peters, J.R.;
BCSC].
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"In any case the arrest warrant did not justify a search of the apartment in the absence of any exigent circumstance {para 13}
[Nguyen, T.D.;
BCSC]."
Especially when the warrant for arrest is endorsed
[Gilpin, S.L.;
BCSC].
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Accused persons have a privacy interest in their bodily fluids
[Dyment, B.R.;
SCC].
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The wearing of 'gang' colours is not a ground to search
[K.B.;
MPC],
nor is the mere allegation that the accused is a member of a motorcycle club
[Conrad, P.N.; {paras 28-30};
ABCA,
nor is the fact that a police data base has a reference to possible gang affiliations {para 116}
[Nguyen, H.P.;
OSCJ].
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An accused's refusal to consent to a search is not a ground to issue a search warrant
[Kim, H.S.;
ABQB].
- There are conflicting opinions as to whether or not a search warrant includes the ability to search motor vehicles on the
property during the search.
Refer to the searches of
motor vehicles - charter applied
page.
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Remember that accused persons have the onus of proving that they have the standing to bring forward a Charter
challenge. "It seems to me that in a situation where an appellant seeks to establish standing to challenge a search or the
issuance of a search warrant, it will be requisite for him or her to point to some evidentiary basis to establish standing or
status for the successful assertion of a privacy interest {para 22}." "Since the onus lies upon an accused person to
demonstrate such an interest, there must be a sound evidentiary basis to support such as opposed to just a theory {para 22}
[Stein, W.;
BCCA]."
End of the Charter Applies When Section
Page PR 02
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