Defending an unwarrented search and seizure.
Below was the arguement that I had put together to have the search warrant quashed. The thing is, I never got to test it. LOL
Determination of a violation of section 8 of the Charter.
You can use the below to help build your Applicants Factum.
1. Did the defendant have a right of reasonable expectation of privacy?
The Defendant’s home is a dwelling place, the most private of places and to which a monthly rent was paid. R. v. Plant SCC McLachlin J.
2. Was the perimeter search conducted unreasonably?
In R. v Collins, it states, In the case of a search without a warrant, the burden shifts to the Crown to prove it was reasonable.
In the Defendant’s case it was unreasonable for the following reasons:
The search was a warrantless trespass, which had no prior judicial authorization and was conducted covertly at night. No exigent circumstances were present as required under the CDSA 11(7). The peering in of the windows of the dwelling is extremely unreasonable and reveals details about a person’s lifestyle that they may not wish to be revealed. In R. v. Evans the SCC held that approaching a residence for purposes other than communication is not covered by the "implied license to approach" a residence.
3. Officer __________ lacked evidence to pursue further investigation.
In Officer ________ Witness Statement pg. 14 he stop pursuing further investigation on or after Dec. 04, 2006, for lack of evidence. I quote "At this time I did not pursue the information any further, and provided the information to the lakeshore OPP members."
No further surveillance was made after Dec 05, 2006 as stated in his ITO Appendix "A" on page 5 para (6), until the night of April 12, 2007, over 4 months later. For which the sensory observations that were made by Dec. _______ warrantless trespass, became the basis for the ITO a Search Warrant the following day April 13, 2007. I quote Officer _______ from his Witness Statement pg. 14"We decided that I would apply for a search warrant the following morning."
4. Should the evidence be excused under s. 24(2) of the Charter?
The Police conduct was flagrant and evidence obtained illegally and unconstitutionally, which constitutes a serious violation. The administration of justice would be brought into even greater disrepute if the Court did not exclude the evidence.
In R. v Collins, the SCC majority states: "The administration of justice would be brought into even greater disrepute if the Court did not exclude the evidence and dissociate itself from the conduct of the police which, assuming it was based on mere suspicion, flagrantly and seriously violated the individual's rights."
In R. v. Kokesch, SCC App.1 pages 4&5 the majority states: "The evidence should be excluded pursuant to s. 24(2) of the Charter. While the evidence obtained as a result of the search was real evidence and its admission would not tend to affect the fairness of the trial, the police conduct represents an extremely serious Charter violation. The unavailability of other, constitutionally permissible, investigative techniques was neither an excuse nor a justification for the police's action. Where the police have nothing but suspicion and no legal way to obtain other evidence, they must leave the suspect alone. They should not try to gather evidence illegally and unconstitutionally. When they do so, the Charter violation is plainly more serious than it would be otherwise. Any other conclusion would lead to an indirect but substantial erosion of the Hunter standards. From the point of view of individual privacy, the illegal before the Charter, individuals were entitled to expect that their environs would be free of prowling government officials unless and until the conditions for the exercise of legal authority are met. Further, the seriousness of the Charter violation was not mitigated by good faith on the part of the police officers involved in the perimeter search. The search was conducted with the knowledge that legal search powers under s. 10 of the Narcotic Control Act were unavailable; and the police officers did not misapprehend the scope of their authority. The police must be taken to be aware of this Court's judgments delimiting police powers. Either the police knew they were trespassing, or they ought to have known. Any doubt they may have had about their ability to trespass in the absence of specific statutory authority to do so was manifestly unreasonable, and cannot, as a matter of law, be relied upon as good faith for the purposes of s. 24(2). Where police powers are already constrained by statute or judicial decisions, it is not open to a police officer to test the limits by ignoring the constraint and claiming later to have been "in the execution of his duties". Finally, the administration of justice would suffer far greater disrepute from the admission of this evidence than from its exclusion. This Court must not be seen to condone deliberate unlawful conduct designed to subvert both the legal and constitutional limits of police power to intrude on individual privacy. The section 8 violation was flagrant, and the disrepute to the justice system that would necessarily result from the admission of the impugned evidence could not be counterbalanced by speculation about the disrepute that might flow from its exclusion."
In R. v. Grant, SCC App. 2 page 4, "The warrantless perimeter searches in this case were unreasonable and therefore in violation of s. 8 of the Charter. A warrantless search to be reasonable must be authorized by law, but s. 10 NCA is available only in exigent circumstances, and there were none here. There was no indication that the officers who conducted the searches were unable to obtain a warrant, or that they had a reasonable concern that the narcotics in the residence would be lost, destroyed or removed or would disappear."
In R. v. Harrison, SCC, for the majority, "The price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards. To appear to condone wilful and flagrant Charter breaches amounting to a significant incursion on the accused’s rights does not enhance, but rather undermines, the long-term repute of the administration of justice. Police officers are expected to adhere to higher standards than alleged criminals. The conduct of the police that led to the Charter breaches represented a blatant disregard for Charter rights, further aggravated by the officer’s misleading testimony at trial."
The evidence in this present case must be excluded.
R. v. Harrison (2009)
R. v. Plant
R. v. Wiley
R. v. Grant
R. v. Kokesch, 1990 CanLII 55 (S.C.C.)
Search Warrants Considered Website
Application to Quash search warrant and exclude evidence. Ontario Court of Justice. You will need to build your own Applicants Factum based on the information in your disclosure.
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