Consent Searches: What You Need to Know
Under section 8 of the Charter, every person in Canada has the right “to be secure against unreasonable search or seizure.” This is a right that everyone possesses, regardless of whether or not that person has been charged with an offence or is the subject matter of an investigation. In turn, a consent search is when a person allows the police to search a particular place or thing, or to seize a particular thing, without requiring the police to obtain a warrant, thereby waiving that person’s right. However, what the public generally misunderstands about consenting to a search is that there are many criteria that must first be satisfied before a person can validly consent to a search by police.
According to the Ontario Court of Appeal in R. v. Atkinson, 2012 ONCA 380, in order to waive the protection afforded under section 8 of the Charter, that person must give consent that is fully informed and voluntary (at para 55). For the consent to be voluntary, it cannot be a product of oppressive or coercive conduct by the police, or any other type of conduct that would fundamentally undermine that person’s ability to choose to provide or deny consent (see R. v. Wills,  OJ No 294 (ONCA) at para 69). For example, a consent would not be voluntary where the consent was provided only because of a quid pro quo, such as the police promising to release an accused person on a Promise to Appear from the station rather than holding them for bail so long as that person consents to the search or seizure. Or where the police made threats of action if that person did not consent.
For the consent to be informed, the person who provides the consent must be made aware of the circumstances of the search or seizure, in their entirety. This includes an awareness of the reasons/purpose for the police seeking to search or seize the place or thing, the right to refuse or permit the police to conduct the search or seizure, and, most important in my opinion, the consequences that may occur as a result of the consent.
In order to understand the consequences of waiving one’s right to be free from unreasonable search or seizure, that person must have an understanding of their position in relation to the police conduct. Is the person a suspect, an accused person, or an “innocent bystander”? As well, there must be an understanding that whatever evidence is obtained as a result of the consent, may and can be used against that person or another person in the future.
An additional component of the test for valid consent to search is that the person who provides the consent must have the authority to give the consent. In other words, the person to provide the consent must be the one who has the privacy interest in the thing or place being searched or seized; consent provided by a third party is not sufficient. But what does this mean? A “third party consent” is where a person other than the person with the direct privacy interest consents to allowing the police to conduct a search or seizure. Many people believe that third party consents are valid consents because American television tells us that it is valid. However, this is entirely incorrect. While third party consents have been well established in the United States as a valid means of obtaining consent, that is not the case here in Canada. In R. v. Cole,  3 SCR 34, the Supreme Court of Canada concluded that the doctrine of “third party consent” was fundamentally inconsistent with the established Canadian doctrine of “first party consent” (at paras 74-75). As such, the only person who can provide consent is the person who has the privacy interest.
Despite the numerous criteria for a valid consent, the provider of the consent still remains vulnerable because there is no requirement that the police advise the provider of consent of their ability to consult counsel prior to providing the consent. It has been well established in case law that a person’s section 10(b) Charter right “to retain and instruct counsel without delay and to be informed of that right…” only comes into play when that person has been detained or arrested, and not when a person is searched (see R. v. Debot,  2 SCR 1140 at 1146-1147). If there is no detention or arrested, then there is no right to retain and instruct counsel.
But what if a person has been detained or arrested; do the police have a requirement to advise that person of their ability to consult with counsel before providing consent? The answer is still no. There is no requirement that the police, in obtaining a consent to search or seize from a detained or arrested person, inform that person of their right to speak with counsel prior to providing consent. Police are only required to inform a person of that right after detention or arrest, and not again prior to a search or seizure.
The main issue with the lack of such a requirement is that, in my view, the jeopardy that a detained or arrested person faces immediately upon detention or arrest is different from the jeopardy that a person faces when deciding whether or not to provide consent to search. For example, when a person is initially detained or arrested, and has been provided rights to counsel and an opportunity to speak with counsel, that person may have not been aware that the police wish to obtain consent to search or seize something from that person. As Samantha Saunders explained in “Police Interrogations: What Rights Do We Have?” once an accused person has been provided with rights to counsel and has spoken with counsel, the right to re-consult with counsel arises only in the most specific of circumstances. The need of that person to get legal advice as to whether or not to consent to a search or seizure is not something that is captured by the right to re-consult with counsel. Ultimately, the requirements for a valid consent have been put in place in order to ensure that the person has all of the information necessary to make an informed decision regarding providing or denying consent. Yet, in my opinion, it is of real concern that many people, despite the requirements for a valid consent, may still believe that they must give in to the demands or requests of the police.