Category: articles

Patrick Ducharme

To establish a violation of section 8 of the Charter, the accused must first establish a reasonable expectation of privacy with respect to the relevant place. Given that the search was of the accused’s person, the existence of a subjective expectation of privacy and the objective reasonableness of that expectation are important. A subjective expectation of privacy with respect to one’s person has been historically recognized and is reasonable. It is not rendered unreasonable merely by the student’s presence at school.
Continue reading “School Searches (Part 3)”

Patrick Ducharme

In M. (M.R.)3 the Supreme Court of Canada was confronted with the circumstances of the junior high school vice-principal who had been provided with reasonably reliable information from students that the accused, a student, was intending to sell drugs at a school function on school property. He asked the accused and his companion to come to his office where he asked each if they were in possession of drugs and advised them that he was going to search them. A plain-clothed RCMP constable, called by the vice-principal pursuant to school policy, was present but said nothing while the vice-principal spoke to the students and searched them. The vice-principal seized a hidden cellophane bag of marijuana and gave it to the constable who advised the accused that he was under arrest for possession of a narcotic. The constable read to him the police caution and his right to counsel, and advised him that he had the right to contact a parent or adult. The accused attempted unsuccessfully to reach his mother by phone and stated that he did not wish to contact anyone else. The constable and the accused then went to the accused’s locker and searched it but nothing was found there.
Continue reading “School Searches (Part 2)”

Any search conducted by school authorities must be reasonable. It must be authorized by statute and appropriate in all the circumstances. The factors to be considered in deciding whether a search conducted by teachers or principals in response to information received is reasonable are:
48 whether the relevant legislation (in Ontario the Education Act) provides authorization for such searches in appropriate circumstances;
49 if the search itself was carried out in a reasonable manner, sensitive to all circumstances and minimally intrusive.1

Continue reading “School Searches”

Patrick J Ducharme

Continued from part 2

Individuals who are detained for investigative purposes must be advised, in clear and simple language, of the reasons for the detention. Investigative detentions carried out in accordance with the common law power recognized in this case will not infringe the detainee’s rights under section 9 of the Charter. They should be brief in duration.
Continue reading “Investigative detentions (part 3)”

Patrick Ducharme

In Mann the Supreme Court of Canada was dealing with a case where two police officers approached the scene of a reported break and enter, they observed M, who matched the description of the suspect, walking casually along the sidewalk. They stopped him. M identified himself and complied with a pat-down search of his person for concealed weapons. During the search, one officer felt a soft object in M’s pocket. He reached into the pocket and found a small plastic bag containing marijuana. He also found a number of small plastic baggies in another pocket. M was arrested and charged with possession of marijuana for the purpose of trafficking.
Continue reading “Investigative detentions (part 2)”

Patrick Ducharme

There is no general power of detention for investigative purposes, but the police may detain an individual if there are reasonable grounds to suspect in all the circumstances that the person is connected to a particular crime, and, the detention is reasonably necessary on an objective view of the circumstances. The circumstances include the extent to which the interference with individual liberty is necessary to the performance of the officers duty, to the liberty interfered with, and to the nature and extent of the interference.
Continue reading “Investigative Detentions”

Patrick J Ducharme

By common law, the police have the power to search a person and her immediate surroundings incident to her arrest. The search does not have to be based upon reasonable grounds to believe that the person arrested is in possession of evidence, contraband or a weapon. The search need only have a purpose related to the arrest. Typically, the police claim the need to search incident to arrest, for their own protection, and the protection of the public, or, the preservation or discovery of evidence. In contrast, there must be additional grounds for concluding that a strip search is necessary. Except in rare and exigent circumstances, strip searches are to be conducted in police stations and should be performed with minimal force and by an officer of the same gender as the arrested person.
Continue reading “Search Incidental to Arrest”

Patrick Ducharme

Exigent Circumstances

The Code provides statutory authorization to execute a search in the absence of a search warrant if the conditions for obtaining a search warrant exist but, by reason of exigent circumstances, it would be impracticable to obtain a search warrant.1 A peace officer may also search a place or a person in an effort to seize items related to a drug offence provided the conditions for a search warrant exist but because of exigent circumstances it would be impracticable to obtain a search warrant.
Continue reading “Exceptions to the Requirement of a Warrant”

Patrick J Ducharme

Continued from Tele-warrants

Primary designated offence means:

Continue reading “Primary designated offences”

Patrick Ducharme

A Judge or Justice may issue a tele-warrant in circumstances where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a Justice to obtain an ordinary search warrant.1 This process is intended to provide immediate access to a judicially authorized search warrant in exigent circumstances. In these circumstances the officer provides information to a Justice by telephone or by facsimile, and, the Justice issues the warrant orally or by facsimile to the officer. The proceedings are recorded. This same methodology is also available to obtain a general warrant2, a warrant for DNA3 or a bodily impression warrant4. The information must be on oath and recorded verbatim by the Justice.5 The Justice must cause to be filed as soon as practicable the record of the transcription of the information or the written document with the clerk of the court for the territorial division in which the warrant is intended for execution. The Justice must also certify the record or transcription of the information as to time, date and contents.6 The tele-warrant issued by a Justice has the same legal effect as an ordinary search warrant. The peace officer provides a facsimile of the warrant to any person present and in ostensible control of the place to be searched.

Continue reading “Tele-warrants”