Search and Seizure Law in Canada 2022

R. v. Marakah was decided by the Supreme Court of Canada on December 8, 2017. These speakers will examine the emerging jurisprudence related to text messages. In addition, they will consider Marakah’s application to other scenarios (including whether an accused has a reasonable expectation of privacy in text messages on a complainant’s phone and whether Marakah applies to a complainant’s reasonable expectation of privacy in records.

Since its inception, s.24(1) has invited civil remedies for Charter breaches. This panel looks at where the law has been, and where it might be going, in relation to possible remedies for Charter breaches outside the criminal process.

A panel composed of a senior police officer, Crown counsel and anti-racism advocates will discuss issues and solutions surrounding  the right to be secure against unreasonable search and seizure considered through the lens of racialized members of the community.

This panel will review the practical and emerging issues related to litigating search warrants, including:

• Facial and sub-facial challenges
• Requirements for an application to cross-examine the affiant
• Garofoli  Step Six
• How and when does 24(2) apply

Section 490 (Detention of things seized ) applications are a critical part of criminal investigations. They are often routine and automatic, but when problems arise, they can have a significant impact on a subsequent prosecution. This panel will address what s. 490  requires, how investigators should comply, and when Crown counsel might get involved. Our speakers will also review the evolving jurisprudence on s. 490-related issues.

When does a regulatory investigation “cross the Rubicon” into a criminal investigation? What are the s. 8 Charter implications? This panel will revisit the principles set out in R. v. Jarvis, 2002 SCC 73 and R. v. Ling, 2002 SCC 74, examine more recent jurisprudence, discuss current issues, and offer guidance on how to address the practical challenges.

Twenty-five years ago, in R. v. Feeney, [1997] 2. S.C.R. 13, the Supreme Court of Canada considered when police can enter a home incident to arrest. In 2021, the Court heard the appeal in R. v. Stairs, 2020 ONCA 678, which will address the extent to which the doctrine of search incidental to arrest applies to searches conducted in a home following a warrantless arrest. These speakers will review the principles governing Feeney warrants and search incidental to arrest and discuss the emerging issues, including those considered in Stairs.