Romaniuk's
Search Warrants Considered

General Matters

• "The sources of legal authority for police to conduct warrantless searches will arise through statute or common law. The common law will typically provide the legal basis for warrantless searches when:
  
  
  1. there is consent to the search;
  2. the police come upon evidence in the course of their duties or unexpectedly and that evidence is in plain view (under the “ plain view doctrine”) [author's note: which allows seizures, not searches];
  3. the search is incident to arrest;
  4. the search is incident to detention; or
  5. the search is ancillary to the common law police powers and duties to keep the peace and preserve life pursuant to the Waterfield/Dedman test (R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.); Dedman v. The Queen et al., 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2) {para 31}
  
  [Farrah, D.; MCA]."
• Victims of crime can voluntarily turn-over evidence of the crime to police authorities, upon the request of police. Here where the police had reasonable grounds to suspect that a crime has been committed, and advised the victims of the situation. The victims were unaware of the same until advised by the police.
  
  
  1. electrical usage records
     [Gomboc, D.J.; {para 42}; SCC].
  2. banking records
     [La, H.D.; 2012 CarswellAlta 505, 2012 ABQB 192; {para 64}; ABQB].
  
  
• Police Officers can use the 'ordinary' view gained from trespassing on a neighbour's property (the neighbour's right to privacy was breached, not the accused person's)
  [Hok, J.; BCCA, app dism'd; SCC, Scott, D.M.; BCSC and Vereczki, V.; BCSC].
  Further when an accused throws something into a neighbouring yard, and the police retrieve it (here a pistol hidden in a sock), the accused has no privacy right in a neighbour's yard
  [Stevens, B.; OSJC, Affm'd; OCA].
  Review no trespassing.
• Evidence gathered via breaches of other persons' Charter rights are admissible in an ITO
  [Nasab, M.V.; BCPC].
• Evidence gathered by viewing though a clear plastic bag can be used in an ITO as there was no intrusion into privacy
  [Blais, L.R.; OCA].
• Government records volunteered to the investigators by government officials can be used in an ITO
  [D'Amour, M.; OCA].
• There is no privacy interest in:
  
  
  1. Commercial buildings where the accused is an employee of the owner. "The appellant was an employee of Transport Canada, the owner of the warehouse. He was responsible for the maintenance of the warehouse but did not have either possession or control by any legal interest such as a tenancy under a lease. He had possession only because of his position of employment and it was not exclusive. The property was accessible to the public with the appellant having some control over which members of the public could enter and when they could enter {para 36}
     [King, L.C.; PECA]."
  2. Fishing boats
     [Erickson, A.R.; BCCA].
  3. Fishing huts
     [Sens v. Dobko; SKQB].
  4. Hunting blinds
     [Flemming, R.; NFLDPC].
  5. Serving prisoners' property {paras 34-38}
     [Guimond, N.B.; MQB and Brown, D.A.R.; MQB].
  
  
• There is a privacy interest in employer owned computers used exclusively by an employee. Here a school board employee who kept a sexually explicit picture of a student on his lap top. The Principal and School Board were entitled to search the computer under their duty to protect the interests of their students {paras 49-66}. However the police investigators should have used that information to obtain a search warrant to conduct a search of the computer itself. The evidence was excluded as a result
  [Cole, R.; ONCA, UNDER APPEAL; SCC].
• When an accused voluntarily hands property over to the police, he can expect that they will examine it
  [K.(G.); OCJ].
• Observations made when officers are attending an accused person’s residence to execute an involuntary Mental Health Act warrant are permissible in an application for a search warrant
  [Storoszczuk, W.J.; MPC].
• Indian Bands derive their authority to pass by-laws from federal legislation. They can pass by-laws that allow for warrantless searches. "In any event, considering all of the evidence relating to the dry reserve status of the Sachigo Lake community and its neighbouring communities, it would seem from a purely objective point of view that anyone entering the community, because of the difficulty the community was having with intoxicants and their battle to combat same, would have a considerably lessened expectation of privacy than one might find in some other communities in the country {para 10}
  [Winter, M.; OSCJ]."
  Review administrative warrants.

End of General Section

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