Chapter 5 (cont’d) 5.4 – Legal Rights and Search Laws

R v. Fearon, 2014 In july 2009, Kevin Fearon was arrested after a jewelry stall at a flea market in Toronto was robbed. Police went through his cellphone and found pictures of a gun and cash as well as a text message about jewelry. Fearon argued that police breached his charter rights by looking through his phone after his arrest. The Appeal Court denied his appeal, saying that police were allowed to look through Fearon's phone. O Do you agree with the court’s decision?

Legal Rights O Section 7 – 11 of the charter outlines the legal rights of citizens who are detained or arrested O Section 8: Everyone has the right to be secure against unreasonable search or seizure. O Police cannot: O Search you or your property O Record you speaking O Seize your property (take by force) Unless they have reasonable and probable grounds to do so Turn to page 598, and read through sections 7 – 10. Which right do you think Fearon felt the police had violated? Discuss

Legal Rights O “Police search incident to arrest”: Police can search a person without a warrant if they have arrested that person or if they believe he or she is carrying a concealed weapon O Based on this doctrine, in the case of R. v. Fearon, the Court ruled that a warrant is not required if the cellphone is not password protected or locked in any other way

Rights on Being Searched O Police cannot enter the accused’s residence unless if they have a search warrant O Search warrant – a court order authorizing police to search a specific place at a specified time

Obtaining a Search Warrant O Before a search warrant can be issued, police officers must: O Swear before a justice of peace or a judge that an offence has been committed O Have reasonable grounds to believe that evidence of the crime exists on the property O Outline to the court why the informant is reliable before a warrant is issued (if an informant is used)

Using a Search Warrant O A search warrant is limited in the following ways: O Must be performed on the date/time listed on the warrant O Can only search areas and items outlined in the warrant O Only the items mentioned in the warrant can be seized (unless if other illegal items are found during the search)

Too many search warrants? Search warrants have become much too easy for Toronto police to obtain, says a veteran defence lawyer who is calling on the courts to “bring some control to the situation that’s become like the Wild West.” New documents show the number of search warrants executed by Toronto police has almost tripled in a nine-year period. In roughly half the cases, nothing illegal was found and no charges laid. Only 698, or half, of the 1,359 search warrants executed in 2013 resulted in charges being laid, “and (those charges) may also include charges not directly related to the warrant,” the TPS states. A 50-per-cent “failure rate” is a “huge problem,” lawyer David Bayliss said Friday. “These search warrants are supposed to be based on reasonable and probable grounds to believe that something will be found.” Do you agree with Bayliss? Discuss.

Search Laws and Rules O Police can demand to enter a property when they are carrying a search warrant O If permission is refused, or no one is home, police can break into the premises O If the warrant is not correct in detail (e.g. wrong date or address), entry can be refused

Search Laws and Rules O Police can search individuals on the premises only after arrest unless they believe that the person possesses illegal drugs or weapons O They must have reasonable and probable grounds for the search O Police do not need a search warrant for anything found on a person who agrees to be searched

Search Laws and Rules O Police need a warrant when using electronic surveillance equipment such as: O Video surveillance O Tracking device O Telephone number recorder

Search Law Exceptions O Unless it is a private residence, police do not need a warrant to search any place for illegal drugs or weapons O Anyone found inside these premises can also be searched without a warrant O They must prove to a judge that they had reasonable and probable grounds O Warrants are also needed when police enter business grounds (very different process)

R v. Shankar, 2007 O Read the case on page 159, and answer the questions provided