Canadian Criminal Procedure and Practice/Search and Seizure/Warrantless Searches

Types of Search An individual alleging a breach of his or her Charter rights bears the burden of proving that violation on a balance of probabilities. That being said, if the individual can demonstrate that a police search was conducted without a warrant, that search will be presumed to be unreasonable unless shown to be justified.Hunter v. Southam Inc., [1984] 2 S.C.R. 145 1984 CanLII 33; R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83; R. v. Mann, 2004 SCC 52 R. v. Feeney, [1997] 2 S.C.R. 13 at para. 54 The Crown then must prove the reasonableness of the search on a balance of probabilities. see R. v. Caslake, [1988] 1 S.C.R 51 at para. 11 1998 CanLII 838 Reasonableness of a search has both a subjective and objective component.R v Bernshaw, 1995 CanLII 150 (SCC) The Police cannot enter into a private dwelling without a warrant, consent, or exigent circumstances.R. v. Feeney, [1997] 2 SCR 13, 1997 CanLII 342 (SCC) at 44 There are four types of warrantless searches: Search by Consent; Search Incident to Detention; Search Incident to Arrest; Search of Abandoned Property; Search in Plain View; Exigent Circumstances 2