What Does Consent Search Mean?
If you voluntarily give your consent for the police to search a location (such as your vehicle) or your cell phone, they can do so without a warrant.
What is the Standard for a Consent Search?
For a search to be considered a consent search, the police must obtain clear and unequivocal consent from the person who has authority over the area or item to be searched. This means that the person must have a clear understanding of what they are consenting to and must freely and voluntarily give their consent. It is also important to note that a person can withdraw their consent at any time during the search. If they do so, the police must stop the search immediately.
The police must also ensure that the person giving consent has the authority to do so. For example, if the police ask a passenger for consent to search the vehicle, and the driver has not given them authority to do so, the search may be deemed invalid.
Who Has the Onus of Proving a Valid Consent Search?
The Crown bears this onus. The Crown always bears the onus if a search is conducted without a warrant, since all warrantless searches are presumed to be invalid, and the Crown must prove there was valid authorization to search (i.e. search incident to arrest, exigent circumstances, etc.).
The lawyers at Lockyer Zaduk Zeeh have a wealth of experience dealing with Charter issues. This includes unlawful arrests; searches of homes, vehicles, and wiretap investigations; and right to counsel issues. If you or someone you know has been charged because of a search, please give us a call at 416-613-0416 to schedule a consultation.