Police are required to obtain prior judicial authorization in the form of a warrant to enter a dwelling house for the purpose of carrying out an arrest.
See R v. Feeney, 1997 CanLII 342 (SCC);
Sections 529-529.5, Criminal Code (“Feeney warrants”).
There are three well-established exceptions to this constitutional and statutory requirement:
a. hot pursuit,
b. exigent circumstances, and
Today’s blog deals with the exception of consent.
Absent a recognized exception, a warrantless entry by the police into a dwelling house will violate section 8 of the Charter, as it constitutes an unreasonable search within the meaning of that provision. State intrusions into the home strike at an aspect of personal privacy which has always held a special place in the law: R. v. Golub (1997), 1997 CanLII 6316 (ON CA). As such, unauthorized intrusions into the home constitute serious constitutional violations.
In Canada, there are no legislative provisions that authorize warrantless searches on consent. Consensual searches are, however, permissible at common law (Young v. Ewatski (2012), 2012 MBCA 64 (CanLII), at para. 54), a common law which has adjusted to comport with the constitutional status of privacy.
A search will not be unreasonable under section 8 of the Charter where the individual has consented to the state intrusion upon his or her privacy.
R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 (Ont. C.A.), at p. 541 (passage approved in R. v. Borden, 1994 CanLII 63 (SCC),  3 S.C.R. 145, at para. 34;
R. v. R.M.J.T., 2014 MBCA 36 (CanLII), at para. 46;
R. v. Simon, 2008 ONCA 578 (CanLII), at para. 48.
To constitute a valid waiver of the s. 8 Charter right, consent must meet a high standard – it must be consent which is fully informed and meaningful.
R. v. Bergauer-Free, 2009 ONCA 610 (CanLII), at para. 53;
R. v. Simon, at para. 49;
R. v. Wills [(1992), 1992 CanLII 2780 (ON CA);
R. v. M.C.G. 2001 MBCA 178 (CanLII).
The validity of a waiver is a fact-bound inquiry.
The Crown bears the burden of demonstrating that any waiver relied on by the Crown is in all of the circumstances an effective and informed waiver of an individual’s s. 8 rights.
R. v. Simon,2008 ONCA 578 (CanLII), at para. 49.
Courts will be slow to infer a waiver of one’s section 8 right, particularly where the individual who is said to have waived his or her rights is detained and is the target of a criminal investigation.
Consent must come from the right person
Section 8 is available to confer standing on an accused person who had a reasonable expectation of privacy in the premises where the search took place.
R. v. Pugliese (1992),1992 CanLII 2781 (ON CA);
See R. v. Edwards, 1996 CanLII 255 (SCC) for section 8 standing in relation to privacy interests territorial in nature;
Everett v. McCaskill, 2015 MBCA 107 (CanLII), at para. 76 (leave to appeal refused  S.C.C.A. No. 44).
If the accused cannot demonstrated a reasonable expectation of privacy, his/her section 8 Charter rights are not engaged. The accused will therefore lack the standing to challenge the constitutionality of the search (ie. the entry of the police into the dwelling house without a warrant), including the validity of consent.
Requirements for Valid Consent
In R. v. Wills (1992), 1992 CanLII 2780 (ON CA), Doherty J.A. listed six factors which the Crown must establish on the balance of probabilities for a finding that an individual waived his or her right to be secure against an unreasonable search or seizure:
(i) there was a consent, express or implied;
(ii) the giver of the consent had the authority to give the consent in question;
(iii) the consent was voluntary and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
(iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
(v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested, and
(vi) the giver of the consent was aware of the potential consequences of giving the consent.
In short, waiver presupposes a voluntary informed decision to pick one course of conduct over another. Knowledge of the various options and an appreciation of the potential consequences of the choice made are essential to the making of a valid and effective choice.
Real consent is not simply acquiescence or compliance.
Wills, at p. 541;
R. v. Atkinson, 2012 ONCA 380 (CanLII), at para. 49.
The police are not entitled to rely on a bona fide mistaken belief in consent to justify a warrantless search.
See R. v. Mascoe, 2017 ONSC 4208 (CanLII), at para. 139.