Plain View Doctrine
There is a well-established legal principle ... that the items seized cannot be retained unless they fall within the exceptions widely recognized within criminal jurisdiction: ... the “plain view” doctrine ...
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... the “plain view” doctrine ... usually applicable in warrantless searches, emphasizes that what has been seized must be in “plain view” ... the doctrine is applicable in order to extend legitimate searches but only when these objects are in plain view or are discovered inadvertently during the course of an otherwise legitimate or authorized search; further, there must be evidence to satisfy the tribunal that the seized objects are related to the commission of an offence.
Lake Ontario Cement Ltd./Ciment Lac Ontario Ltée v. Canada (Director of Investigation & Research) |
1990 CarswellNat 769 (Fed. T.D.) at para. 7, 10 |
The common law rule with regard to the “plain view” doctrine is that where, during the course of executing a legal warrant, an officer locates anything which he reasonably believes is evidence of the commission of a crime, he has the power to seize it ...
... the context in which the search for and seizure of “plain view” documents appears in the [Income Tax Act, R.S.C. 1952, c. 148, s. 231] i.e., in the course of searching for and seizing business documents under a warrant which would obviously involve examination of documents by the searcher in order to determine whether their seizure is authorized by that warrant, suggests that the authority to seize other business documents not covered by the warrant meets the test of reasonableness and therefore of validity.
Solvent Petroleum Extraction Inc. v. Minister of National Revenue |
1989 CarswellNat 289 (Fed. C.A.) at para. 17, 18 |
The Courts have interpreted a search as excluding from its ambit those things that are in plain view from a place where police officers are entitled to be. This is known as the “plain view” doctrine and has received judicial acceptance in Canada: R. v. Longtin (1983), 41 O.R. (2d) 545... (C.A.). In the R. v. Askov (1987), 60 C.R. (3d) 261... (Ont. Div. Ct.), Judge Borins held that for a seizure to be lawful on the basis of the “plain view” doctrine, the searcher must lawfully be on the premises where the property is found in “plain view”.
The activities in the viewing booths would only be in “plain view” because the [City of Vancouver] by-law requires adult entertainment store owners to, in effect, remove booth walls, thereby exposing the activities inside. This exposure is by authority of law, but it is not in accordance with the normal principles governing the issuance of warrants, i.e., the existence of reasonable and probable grounds that an offence has been committed or that evidence with respect to that offence exists.
On this basis ... the “plain view” doctrine should not apply on the facts of this case, and that the act of a police officer looking into a booth would constitute a “search” within the meaning of s. 8 [of the Charter].
Perry v. Vancouver (City) |
1990 CarswellBC 194 (B.C. S.C.) at para. 42-44 |
The “plain view” doctrine is a common law doctrine that permits the warrantless seizure of things in plain view.
R. v. Atkinson |
2012 CarswellOnt 7020 (Ont. C.A.) at para. 57 |
The “plain view” doctrine operates when a police or peace officer is in the process of executing a warrant or an otherwise lawfully authorized search with respect to one crime and evidence of another crime falls into plain view. Resort to this common law power is subject to the following restraints, however:
(i) The officer must be lawfully in the place where the search is being conducted (“lawfully positioned”, in the language of the authorities);
(ii) The nature of the evidence must be immediately apparent as constituting a criminal offence;
(iii) The evidence must have been discovered inadvertently;
(iv) The plain view doctrine confers a seizure power not a search power; it is limited to those items that are visible and does not permit an exploratory search to find other evidence of other crimes.
See generally, R. v. Spindloe (2001), 154 C.C.C. (3d) 8 (Sask. C.A.), at pp. 29-37; R. v. Fawthrop (2002), 166 C.C.C. (3d) 97 (Ont. C.A.), at paras. 28-34; [R. c. Law (2002), 2002 CarswellNB 44 (S.C.C.)], at para. 27, and the authorities cited therein.
R. v. Jones |
2011 CarswellOnt 11405 (Ont. C.A.) at para. 56 |