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


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.[1] The Crown then must prove the reasonableness of the search on a balance of probabilities. [2] Reasonableness of a search has both a subjective and objective component.[3]

The Police cannot enter into a private dwelling without a warrant, consent, or exigent circumstances.[4]

There are four types of warrantless searches:

  1. Search by Consent;
  2. Search Incident to Detention;
  3. Search Incident to Arrest;
  4. Search of Abandoned Property;
  5. Search in Plain View;
  6. Exigent Circumstances

  1. 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
  2. see R. v. Caslake, [1988] 1 S.C.R 51 at para. 11 1998 CanLII 838
  3. R v Bernshaw, 1995 CanLII 150 (SCC)
  4. R. v. Feeney, [1997] 2 SCR 13, 1997 CanLII 342 (SCC) at 44