The Supreme Court recently ruled in the case of R v Paterson, 2017 SCC 15, that police cannot search your home without a warrant simply because it would be impractical to obtain one. Warrantless entries must be compelled by urgency, immediate police action to preserve evidence, or officer and/or public safety. The decision highlights the importance of the section 8 right against unreasonable search and seizure of the home.
An I.T.O. or Information To Obtain, is a document filed by a police officer to a Judge seeking authorization to obtain a search warrant, often to look for evidence of drug offences. This document is accompanied by an affidavit of the officer. The affidavit, a document he swears to be true, lists out the reasons the officer is seeking the search warrant. A Judge reviews the ITO, and the affidavit, and decides whether or not to issue the search warrant.
In mid-December, a colleague of mine, Jon Doody, wrote a blog post regarding the rights of police to search a residence when conducting an investigation, such as into drug offences. He outlined the ways in which police may enter a person's residence and search. A common way for the police to search a residence is by obtaining a search warrant, which Mr. Doody explained was a document that the police obtain from a judicial officer.
In a drug investigation, as with other kinds of investigations, there are three ways that a police officer may enter your home: (1) with your permission, (2) with a warrant, or (3) in certain emergencies. These rules generally only apply to entering your house, not on to your property. There exists at law an implied consent for anyone, including the police, to walk on to your property for the purpose of talking to you at your front door. As long as the police have a legitimate purpose to be on your property, including to talk to you, than they are allowed to walk up to your door. You, however, are not required to open the door to a police officer, nor are you required to speak to them at your door.
After being stopped at a RIDE program you are asked to step out of the car and blow into a roadside screening device. The officer tells you that you have failed. You are arrested for driving over 80, read your rights, handcuffed and placed in the back of a police cruiser. The police take you down to the station where you are asked to blow into the breathalyser machine. After a brief wait you are told that your readings were way over the legal limit and that you will be charged with both over 80 and impaired driving. You are eventually released from the station with some paperwork requiring you to show up in court in three weeks.
In R. v. McGuffie 2016 ONCA 365, the Ottawa Police Service received a telephone from a downtown bar advising that a group of five men in the bar had been seen passing a handgun around. McGuffie walked away quickly from the bar. The officer followed him and caught up to McGuffie a short distance from the bar. The officer told McGuffie that he was being detained because he believed he had a handgun. McGuffie denied having a handgun. The detaining officer placed McGuffie in the back of another officer's police car, and the detaining officer returned to the bar to assist other officers in searching for the handgun. He removed him from the cruiser and did another search and he found "a package of white powder in a rectangular shape" identified as cocaine. McGuffie was also strip searched back at the station. The ONCA ruled that the initial detention of McGuffie on the street was a lawful exercise of the police power, but police infringed his s. 9 right by placing him in the cruiser for 30 minutes. The Court addressed the issue of 24(2).
The Charter of Rights and Freedoms guarantees certain rights to anyone arrested, or detained, by police in Canada. These are particularly important to know when arrested for a drinking and driving offence. These rights include:
The Province of Ontario has filed the final regulations dealing when police officers can stop people in public and ask them to identify themselves - normally called "carding" or "street checks." This new legislation will come into effect on January 1st, 2017.
While everyone has the right to speak to lawyer when arrested as guaranteed by section 10(b) of the Charter, youths under the YCJA have further rights.