Criminal Law – FAQ
What is a search warrant?
A search warrant is a written authorization that gives the police the power to enter and search a place. In BC, a search warrant is typically issued by a justice of the peace. In some cases, it is issued by a Provincial Court Judge, and in some rare cases, a Supreme Court Judge.
Under what circumstances would a search warrant be issued?
A search warrant should only be issued if there are reasonable and probable grounds that an offence is being, or has been, committed and that a search of a place will afford evidence of that offence.
How do the police get a search warrant?
The police usually conduct an investigation, and then put their findings in a document called the “Information to Obtain a Search Warrant”. They then forward this document to a justice who then grants or denies the search warrant application. In BC, this process of applying for and getting the search warrant is often done by fax.
Do the police need a search warrant to enter my house?
There are in general three bases upon which the police may legally enter your house:
1. You or someone with authority gives them permission;
2. They have a search warrant; or
3. There are some exigent circumstances (e.g., your house is on fire, or there is an abandoned 911 call, etc.)
The police asked to come into my house. Do I have to let them in?
Absent a search warrant or exigent circumstances, whether you let them in your house is entirely up to you. If they are asking you for your permission, this usually means that they do not have a search warrant and that there are not exigent circumstances.
Can the police come up my driveway?
There is an implied permission for the public (including police) to come up the driveway and even to knock on your door. However, the police should have a legitimate reason for doing so, and should not be taking advantage of this implied permission to gather evidence.
If the police ask me a question, do I have to answer it?
In general, the right to remain silent means that it is up to the individual whether to answer the police questions. However, in some cases, the person has to identify him/herself and to provide an address. For example, a driver has to identify him/herself and to produce his/her driver’s licence when stopped by the police. In some other cases, there may be a statutory obligation to provide the police with information (e.g., the registered owner of motor vehicle involved in an accident). It is best to consult a criminal lawyer if you are not sure whether you are obliged to answer police questions.
If the police knock on the door, do I have to answer?
There is no legal obligation to answer. However, not answering the door may escalate police action, and in some circumstances, result in a forcible entrance by the police, if they have legal authority to enter without your consent.
What does possession mean?
The Criminal Code and the Controlled Drugs and Substances Act create a number of possessory offences. At law, possession requires the person to know about the object, and to exercise some measure of control over the object. Note that possession does not require ownership. If John were driving his brother’s car, he is in legal possession of it because he knows it is a car, and he is driving it — even though he does not own it! On the other hand, John may not know what his brother had put in the trunk. In that case, John is not in possession of the items in the trunk because he may not know about them.
What does “trafficking” mean in the context of the Controlled Drugs and Substances Act?
Trafficking includes selling, but is much broader than selling. If Fred brought some cookies from home and shares them around the office, Fred is trafficking cookies even though no one pays for them. Fred would also be trafficking cookies if he passes an empty box around, telling people it contains cookies, even though it is actually empty! This is called “trafficking by holding out”.
What then is possession for the purpose of trafficking (PPT)?
Combining the definitions above, possession for the purpose of trafficking is knowing what something is, exercising some measure of control over it, with the intention of either selling it, sharing it, passing it on, or simply giving it away.
The police did something improper. Does that mean my charges will be thrown out?
Possibly. If the police did something improper that amounts to a violation of your constitutional rights, the usual recourse is for you to apply to a judge to have some or all of the evidence alleged against you excluded at your trial. This exercise will involve the balancing of a number of factors.
If I know that someone is doing something illegal, do I have to report it to the police?
As a general rule, no. Whether to report an offence is completely up to you. There are, however, some very rare exceptions. You may wish to consult a criminal lawyer about your specific case.
Are the police allowed to conduct surveillance on my house?
Yes. It is perfectly legal for the police to surveil your house, and this is often done. They do not need a warrant for this, as long as they do not enter your property.
Can the police tap my phone?
Like searching your house, the police need prior judicial authorization to tap your phone. However, running a wiretap takes a significant amount of police resources, and will be done only in a small number of cases.
If I am arrested, do I only get to make one phone call?
Not necessarily. Our constitution grants us the right to a reasonable opportunity to “retain and instruct counsel” when we are detained or arrested. Sometimes that may take several phone calls. However, we only have a right to call a lawyer. We do not have a constitutional right to call our friends and family upon being arrested.
The police found some incriminating evidence at my house, am I better off to come clean and confess?
Usually not. It is very difficult for a lay person to assess whether the prosecution has a strong or weak case. More often than not, it is usually better to not create more evidence by talking. It is a good idea to talk to a criminal lawyer immediately to get some advice.
Does an undercover police officer have to tell me that s/he is one if I ask?
No.
If someone made a report to the police about me, do I get to know who that is?
It depends. If that person made the report on an anonymous or confidential basis, the law will jealously protect their identity. On the other hand, if that person is going to be a witness, then you are entitled to know who they are and to receive a copy of their statement.
Does knowing about a crime mean that I am guilty of it?
No. Something more than knowledge is required for someone to be guilty of an offence. For example, knowing that my neighbor robbed a bank does not make me guilty of bank robbery unless I did something to encourage or assist.
Can the police go into my neighbour’s yard to spy on me?
While the police should not trespass on your neighbour’s property, their doing so is not a violation of your rights. You may not have the right to complain about your neighbour’s rights being violated.
What is the statute of limitations on being charged with an offence?
With indictable or hybrid offences (which will cover 99% of all Criminal Code or drug offences), there is no time limit within which the prosecution may commence proceedings.