CONSENT SEARCHES
There is a common law right to search with consent which is well established and frequently exercised. There has been little substantive litigation, but where the Courts have been called upon they exercise the same supervisory approach as they do with voluntary statements, ensuring that the action is in fact a genuine consent in the circumstances. Persons may be searched with their consent, whether or not a warrant intrusion or other statutory intrusion could take place at all. We can find no reason to alter that position.
We have considered whether the statute should require any formalities in the obtaining or giving of consent. This is an area in which there can be sharp contrast between theoretical principle and the need for a regime which considers the reality of law enforcement.
The Canadian Law Reform Commission (in their Working Paper No. 30, Police Powers-Search and Seizure in Criminal Law Enforcement) proposed a power of search without a warrant where a person consents, but required "that the consent should be given in writing in a document warning the person of the right to refuse to consent and to withdraw consent at any time". The absence of a completed document would be prima facie evidence of the absence of consent. The Working Paper also contained a lengthy discussion of the issue of voluntariness. In particular, the assistance to be gained by having a signed document of consent was considered.
We found it significant that in their Final Report on Search and Seizure (No.24) the Commission recommended that consent searches should continue to be permitted without the need for written consent, but with the added requirement that the person to be searched should be informed that "he has a right to refuse the consent and to withdraw his consent at any time". The Commission also changed the evidentiary presumption proposed in its earlier Working Paper by recommending that the presence of a written notice be prima facie evidence of consent, rather than its absence being prima facie evidence of lack of consent.
The real issue is whether the consent is voluntary. We are not persuaded that the procedures proposed by the Canadian Law Reform Commission would make it any easier for the Judge to decide this. Moreover, we think that the common law approach provides as much protection as can realistically be expected. In any event, often it would be impracticable and inappropriate to have a person sign a document. Unless the document was full, informative and properly explained the process could be something of a meaningless ritual. Signing a form which has not been properly explained could place the person searched in a worse position if the signature is treated as prima facie evidence of consent. The issues of withdrawing or modifying consent are best dealt with by the court.
We have therefore concluded that the following simple statutory provision should be enacted:
"Any search may be conducted by consent".