Search and Seizure of Evidence
In order for items of physical evidence to be accepted by the court as exhibits, each item of evidence
must meet the test of having been searched for and seized using the correct lawful authorities. There
are a number of ways in which items of evidence may be legally searched for and seized.
Investigators may search for and seize or receive items of evidence:
• By consent of the person being searched
• On authority of a search warrant under Section 487(1) of the Criminal Code of Canada
• As part of a search incidental to the lawful arrest of a suspect
• As part of a safety search incidental to the lawful detention of a suspect
• Under the doctrine of evidence in plain view at a lawfully entered crime scene
It is important to note that when evidence is being presented to the court, the investigator will be held
accountable to provide an explanation of the circumstances under which an item of evidence was
searched for and seized. This may involve the investigator articulating not only details of how they
discovered the item, but also circumstances to illustrate the offence committed and their authority to
arrest, detain, and/or enter a crime scene lawfully
With similar accountability, when a Section 487(1) Criminal Code warrant is issued, the police are
required in advance to swear an affidavit of facts articulating their reasonable grounds to believe that
an offence has been committed and the evidence of that offence exists in the premises to be searched.
This warrant and the affidavit of facts can be examined and challenged at the trial. As we proceed
through this book we will discuss the process of developing the mental map that enables an investigator
to meet the challenge of seeing and articulating the issues of lawful authority to search and seize
evidence.
Exclusion of Evidence by the Court
In hearing any case, the court has the authority to either accept or exclude any piece of evidence being
presented. An evaluation is applied to all evidence to determine if it will be admissible or excluded.
The types of evidence that can be admitted or excluded range from the physical exhibits found at the
crime scene, to the accounts of events provided by witnesses to a confession taken from a suspect. For
investigators, it is important to understand that any piece of evidence could be challenged by the
defence for exclusion. If challenged, the court will decide if evidence should be excluded based on a
number of rules and depending on the type of evidence being presented.
In the case of witness evidence, the court will first consider if the witness is competent and compellable
to give evidence. A competent witness is generally a compellable witness (R v Schell, 2004).
Competent means legally qualified to testify, and compellable means legally permitted to testify.
Witness competence and compellability are each decided based upon several factors that will be
discussed later in the witness management portion of this book.
If a witness is found to be both competent and compellable, the court will hear their testimony and will
then consider the value of the evidence provided after assessing the credibility of the witness. If a
witness is found to be either not competent or not compellable, their evidence will be excluded at trial.
Like witness evidence, physical evidence is also evaluated by the court to determine its admissibility at
trial based upon a number of factors. These factors will be discussed further in our chapter on crime
scene management; however, they include:
• If the evidence was lawfully seized
• How the evidence was collected, marked, and preserved
• If the evidence was somehow contaminated
• If the chain of continuity for the evidence has been properly maintained
A flaw in any of these factors can result in evidence being excluded at trial. In addition, the court can
completely exclude any evidence that has been obtained following a violation of the Charter Rights
and Freedoms of the accused person. Such infringements on these guaranteed rights and freedoms
would include:
• Improper or unauthorized search of a person or a person’s property
• Improper taking of a statement from a suspect by failing to provide the appropriate warning
and caution under section 10 of the Charter
• Failing to provide proper opportunity for the arrested or detained person to speak with counsel
after arrest or detainment
• Failing to properly disclose all the evidence prior to trial to allow the accused to make full
defence to the charge
Section 24 of the Canadian Charter of Right and Freedoms states:
24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or
denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers
appropriate and just in the circumstances.
(2)Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a
manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence
shall be excluded if it is established that, having regard to all the circumstances, the admission of it
in the proceedings would bring the administration of justice into disrepute.
Practices regarding what evidence may be brought against an individual in trials are addressed by
section 24(2). When evidence is obtained through the violation of a Charter right, the claimant is
able to apply to have the evidence excluded from the trial under this section (Government of
Canada, 2015).
The exclusion of evidence flowing from a Charter violation is not automatic, and there is significant
case law that the court will consider to determine if evidence will be excluded. justice has been brought
into disrepute (replacing the 1987 test in R v Collins). The Grant test lists three factors the courts must
consider:
(1)the seriousness of the Charter infringing conduct (focusing on a review of how society
would view the actions of the state),
(2) the impact of the breach on the Charter protected interests of the accused (focusing on
a review of how the state’s actions affected the accused), and
(3)society’s interests in the adjudication of the case on its merits (focusing on a review of the
importance and reliability of the evidence) (R v Grant, 2009).
Knowing the rules for evidence collection, handling, and preservation can assist an investigator to
avoid errors that could exclude evidence at trial. Following the rules that define Charter violations can
assist an investigator to avoid having valuable evidence excluded completely at trial because of a
charter violation. These topics will all be covered in more detail as we proceed through the various
chapters to follow.
The Distinction Between Investigative Tasks and Investigative Thinking
To understand the process of investigation, it is necessary to comprehend the distinction between
investigative tasks and investigative thinking. Investigative tasks relate to the information gathering
processes that feed into investigative thinking and the results. Investigative thinking, on the other hand,
is the process of analyzing information and theorizing to develop investigative plans. Let us consider
this distinction in a little more depth.
Investigative tasks
Investigative tasks relate to identifying physical evidence, gathering information, evidence collection,
evidence protection, witness interviewing, and suspect interviewing and interrogation. These are
essential tasks that must be learned and practiced with a high degree of skill to feed the maximum
amount of accurate information into the investigative thinking process. Criminal investigation is aimed
at collecting, validating, and preserving information in support of the investigative thinking process.
Accordingly, it is important to learn to do these evidence collection tasks well.
Investigative Thinking
Investigative thinking is aimed at analyzing the information collected, developing theories of what
happened, the way an event occurred, and establishing reasonable grounds to believe. Those reasonable
grounds to believe will identify suspects and lead to arrest and charges. Investigative thinking is the
process of analyzing evidence and information, considering alternate possibilities to establish the way
an event occurred and to determine if they are reasonable.
Progression of the Investigative Process
The investigative process is a progression of activities or steps moving from evidence gathering tasks,
to information analysis, to theory development and validation, to forming reasonable ground to believe,
and finally to the arrest and charge of a suspect. Knowing these steps can be helpful because criminal
incidents are dynamic and unpredictable. The order in which events take place, and the way evidence
and information become available for collection, can be unpredictable. Thus, only flexible general rules
to structured responses can be applied. However, no matter how events unfold or when the evidence
and information are received, certain steps need to be followed. These include collection, analysis,
theory development and validation, suspect identification and forming reasonable grounds, and taking
action to arrest, search, and lay charges.
In any case, as unpredictable as criminal events may be, the results police investigators aim for are
always the same. And, you should always keep the desired results in mind to provide focus and priority
to the overall investigative process. We will talk more later in this book about developing a mental map
of the investigative process to assist in recording, reporting, and recounting events. It is mentioned now
because a mental map is an appropriate metaphor to illustrate the investigative thinking process.
In this process, even though the path we will take to investigate may be unclear and unpredictable at
first, the destination, the results we seek in our investigation, will always be the same and can be
expressed in terms of results and their priorities.
Results and priorities focus first on the protection of the lives and safety of people. They focus second
on the priorities of protecting property, gathering and preserving evidence, accurately documenting the
event, and establishing reasonable grounds to identify and arrest offenders.
Priorities refer to Level One Priorities, as the protection of the lives and safety of people. This includes
the protection and safety of the police officer’s own life and the life and safety of other officers.
The Level Two priorities are the four remaining aforementioned results, and these may be considered
equal value
Response
These two different types of investigative responses are defined by the nature and status of the
event that the investigator is facing. If it is an active event, it will require a Tactical Investigative
Response and if it is an inactive event it will require a Strategic Investigative Response. It is
important for an investigator to understand these two different levels of response because they
include different response protocols, different legal authorities, and limitations to authority.
Tactical Investigative Response
Tactical Investigative Response is faced by operational officers who are engaged in the frontline
response to criminal events. As mentioned earlier, police are often challenged to respond to
events, sometimes life and death situations, where information is limited and critical decisions
need to be made to take action. In these Tactical Investigative Responses, the responding officers
often have little or no time to undertake the tasks of gathering information. They must rely on the
information of a dispatched complaint, coupled with their own observations made once they
arrive at the scene. If an officer takes the action of making an arrest or using force to bring the
situation under control, they are accountable for the action they have taken, and they may be
called upon by the court to articulate their thinking, albeit based on limited information.
Strategic Investigative Response
Once an investigator has arrived at the scene of an event and has brought the event under control
by either making an arrest or by determining that the suspect has fled the scene and no longer
poses a threat to the life or safety of persons, the investigation becomes a strategic investigative
response. With this expiration of life and safety issues, also comes the expiration of exigent
circumstances and the additional authorities to detain persons suspected and to enter and search
private property without a warrant.
Clearly understanding and being able to define and articulate the circumstances of either an
active event and tactical response, or a controlled event and a strategic response is critical. In
court, it becomes important for a police investigator to describe what they were told going into
the complaint, what they saw and heard when they arrived at the complaint, and, most
importantly, what they were thinking to justify the action that was taken. For the court to be
satisfied that the investigator acted lawfully, the judge needs to hear the investigator describe
their thinking process to form reasonable grounds, or in some emergency cases, to have a
reasonable suspicion that justifies the action taken.
To properly articulate their thinking in these investigative responses, it is important for the
officer to understand the situational elements that can help define their thinking process when
they testify in court. Two of the most important situational elements to understand are event
classification and offence recognition.
