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

Principles
A search conducted with valid consent is lawful.

Valid consent exists where the following is present:
 * 1) There was a consent, either express or implied;
 * 2) The consenting party has the authority to give the consent;
 * 3) Consent was voluntary and not the product of police oppression, coercion or other external conduct negating freedom to choose not to consent;
 * 4) The consenting party knew of the nature of the police conduct to which he or she was being asked to consent;
 * 5) The consenting party knew they had the ability to refuse the search;
 * 6) The consenting party was aware of the potential consequences of giving the consent, including a general understanding of the jeopardy resulting from the police conduct about which the consent was being sought.

For consent to be valid it must be voluntary and informed. Voluntary search requires that the consent to be given without coercion.

Informed consent to a search requires the accused to be aware of the right to refuse the search and the consequences of consenting to the search. The party expressing "consent must be possessed of the requisite informational foundation for a true relinquishment of the right. A right to choose requires not only the volition to prefer one option over another, but also sufficient available information to make the preference meaningful.”

The cases are divided on whether the police need to give clear instructions on the right to refuse. In R v Rutten 2006 SKCA 17 at 39 to 44, the court stated that permission to enter to search a dwelling must include information on the person's right to refuse. While elsewhere it is said that the standard of informed consent is less than the informational component of s. 10(b). The police need not tell the accused of the right to refuse consent. However, a failure to do so may result in a lack of informed consent.

The Crown must establish that the accused right to be searched was waived clearly and unequivocally. However, where the accused is given access to counsel there is a presumption of informed consent unless the accused shows otherwise.

Once consent is given there is no future expectation of privacy.

The "occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property”

Consent to enter a home does not include a blanket right to search the whole house including the basement.

Who has authority to give consent and Third Party Consent
An "authorized occupant" of a residence may give consent to a search.

A homeowner can authorize a search.

A landlord or neighbour does not constitute an "authorized occupant".

Guests can have the authority to consent to a search of a home, however, the authorization can be revoked by the homeowner.

For all searches the police must have a subjective belief that they have consent to conduct the search and it must be an objectively reasonable belief in the circumstances. Where the policer wrongly relied upon consent of a third party, the reasonableness of their belief will go to the section 24(2) analysis.

Mandatory Consent
A court order, such as a probation order, can in certain circumstances require an offender to consent to random searches.

Consent by Organizations Holding Personal Information
Privacy of personal information within private companies is governed by the Personal Information Protection and Electronic Documents Act (PIPEDA).

Section 7(3) permits the disclosure of personal information without the subject's knowledge or consent:

Under this section a peace officer may make a Law Enforcement Request (LER) requesting particular information of an accused person without their consent. A proper LER should identify the person requesting the information, what information is being requested, the purpose of the request for the information (presumably to obtain evidence to an offence). The organization is permitted but not required to provide the information requested.