Author Topic: Question to an MP/JAG Regarding Searches  (Read 3926 times)

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Offline dh101

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Question to an MP/JAG Regarding Searches
« on: August 10, 2015, 19:22:53 »
Hello,
first off a disclaimer, I'm not writing to cause an argument or trying to challenge authority. I'm just looking on clarification on a specific topic. I would appreciate if only persons with experience / actual knowledge would give their input, thanks.

So I have two questions, the first is regarding searches of PMQ's by Police/ MP's. I've heard conflicting things regarding the MP's ability to search PMQ's(Amd even single quarters), some people have said they can search them without a warrant / reasonable suspicion.

From what I've read in the NDA
Quote
273.2 Except as provided for by regulations made pursuant to section 273.1, the following, namely,
(a) quarters under the control of the Canadian Forces or the Department and occupied for residential purposes by any person subject to the Code of Service Discipline either alone or with that person’s dependants, as well as any locker or storage space located in those quarters and exclusively used by that person or those dependants for personal purposes, and
(b) the personal or movable property of any person subject to the Code of Service Discipline located in, on or about any defence establishment, work for defence or materiel,
may be searched only if a warrant for that purpose has been issued or the search is otherwise authorized by law.
I would guess that the Charter would also apply here protecting persons from unlawful search and seizure?
I've also heard that CFHA/DND housing authority can "inspect your PMQ" without warning as a way around the who search warrant, is this true?


Second question pertains to vehicle / searches of persons on DND property.
According to Base Standing Orders at the base nearest myself, it states in the orders that any person, under the Code of Service Discipline or As A Condition of being on base, can be searched by MP's, Security Guards (Comissionaires), ETC, at any time while on Base, seemingly without any reason.
Is this lawful as under the NDA? It states the search of " the personal or movable property of any person" requires a search warrant or other lawful authorization?
Would this not also violate our Charter rights against unlawful search and seizure?
I have heard this is allowed due to the Nation Defense Security Detectives / Policies but I can't seem to find these policies/detectives anywhere?

Now I do understand that if you are in uniform you do give up certain rights and that comes with the job/being in uniform. I also understand that a military base does require more security that other places. But according to the Base Standing Orders this is not just for those in uniform or those entering a restricted area. This also could apply to a spouse, or anyone else on base, even PMQ's since they're on base/DND property, anyone at the Canex/ Timmy's if there's one on base, etc.


Thanks
And once again, this is not a post trying to question/challenge authority, I'm just interested in how the law works and how it apply's in these different situations, especially when you have different layers of federal, NDA, Standing Orders, etc.

« Last Edit: August 10, 2015, 19:27:11 by dh101 »

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Re: Question to an MP/JAG Regarding Searches
« Reply #1 on: August 10, 2015, 19:28:30 »
Second question pertains to vehicle / searches of persons on DND property.

While waiting for an expert opinion, you may find this discussion of interest ( in case you have not read it already ).

MPs searching vehicles on base 
http://army.ca/forums/index.php?topic=112235.0
"When you enter a Canadian Forces base there is a sign that states vehicles are subject to search.  Does that mean that someones belongings, say inside a backpack, pockets or kitbag  are subject to search too?"

Inspection and Search Defence Regulations
http://laws-lois.justice.gc.ca/eng/regulations/SOR-86-958/page-1.html



« Last Edit: August 10, 2015, 19:37:41 by mariomike »

Offline LunchMeat

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Re: Question to an MP/JAG Regarding Searches
« Reply #2 on: August 10, 2015, 19:57:15 »
If you take a look at the Inspection and Search Defence Regulation as well as the Defence Controlled Access Area Regulations; you will find your answers.

ISDR Part I - Inspection

Quote
3. An officer or a non-commissioned member may conduct an inspection, including an inspection for the purpose of maintaining military standards of health, hygiene, safety, security, efficiency, dress and kit, of any other officer or non-commissioned member or any thing in, on or about

(a) any controlled area, or
(b) any quarters under the control of the Canadian Forces or the Department,

in accordance with the custom or practice of the service.

ISDR Part II - Search

Quote
4. This Part applies to all persons who are subject to the Code of Service Discipline.

5. As a condition of being given access to a controlled area, a person shall, on demand of a designated authority, submit to a search without warrant of his person or personal property while entering or exiting the controlled area or any restricted area within the controlled area.

6. (1) A person exiting as described in section 5 who refuses to submit to a search of his person or personal property when required to do so pursuant to that section may have his person or personal property searched by a designated authority.

(2) For the purposes of any search by a designated authority pursuant to subsection (1), the designated authority shall use only such force as is necessary.

7. Except where there are reasonable grounds to believe that an immediate search is necessary to maintain security or to prevent danger to the safety of any person, a search of a person pursuant to this Part shall be carried out only by a person of the same sex.

8. A designated authority may search without warrant any personal property about a controlled area or any restricted area within the controlled area where the designated authority has reasonable grounds to believe that the personal property is or may contain anything that is likely to endanger the safety of any person within the controlled area.

However, this does mean that during the Inspection, they cannot be conducting the Inspection except for what was listed above in section 3. Yes, it can be conducted without notice, at any time, whether you are present or not, in PMQs, Single Qtrs.

Now for DCAAR

For the purposes of DCAAR I will not quote sections at this time because it is much larger. It can be found here: http://laws-lois.justice.gc.ca/eng/regulations/sor-86-957/page-1.html#docCont

This piece basically states that as a condition of being granted access to or permission to leave a controlled access area (basically all Defence Establishments when declared a Controlled Area by the Base Comd or higher), you must upon request from a Guard or Designated Authority as defined in Section 2 of DCAAR submit to a search. Refusal upon entry, you will be denied entry. Refusal upon exit, the person will have their person and personal property searched.

Unless you are being searched incidental to arrest, nobody can just pull you aside or pull you over and Search unless

Quote
...reasonable grounds to believe that the personal property is or may contain anything that is likely to endanger the safety of any person within the controlled access area.
(applicable to both ISDR and DCAAR searches)

You can be searched for purposes of Investigative Detention, but only your person and the area in proximity to you.

Now, if someone is conducting a consensual search there are criteria that must be met:

-Informed Consent must be given
-The person must understand what they have consented to
-The person must be of sound mind (cannot be impaired, have capacity etc.)
-the consequences of the search must be explained and understood
-Right to refuse or discontinue the search at any time must be given and understood
-There cannot be a language barrier

I may have missed one but that's really the only circumstances that searches can be conducted without a warrant.

Section 24 of the Charter also provides that although all persons have protection against unreasonable search and seizure, if a person is subject to unreasonable search or seizure, it does not guarantee that that evidence will be excluded in court.
« Last Edit: August 10, 2015, 20:00:32 by LunchMeat »
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Re: Question to an MP/JAG Regarding Searches
« Reply #3 on: August 10, 2015, 20:07:41 »
Now for DCAAR

It can be found here: http://laws-lois.justice.gc.ca/eng/regulations/sor-86-957/page-1.html#docCont

Also in Reply #1 of MPs searching vehicles on base.

« Last Edit: August 10, 2015, 20:16:17 by mariomike »