Consent to search

Today's decision in R. v. Bergauer-Free, 2009 ONCA 610 deals with consent to search.



In this case the accused was misinformed of his rights by the detaining officer. The officer did not have proper grounds to search. As a result of the misinformation the accused consented to a search that led to incriminating evidence.



The Court of Appeal held the consent was vitiated by the misinformation:



57 On the facts of this case, however, the misinformation had the further effect of eviscerating any meaningful choice the appellant had available to him. Translated, the message he received from Officer Yousif was: - you can refuse to consent but it will do you no good because I will bring in the canine unit regardless. That amounts to what the United States Supreme Court referred to in Bumper v. North Carolina, 391 U.S. 543 (1968), as "colorably lawful coercion". And, as Stewart J. for the majority observed at p. 550: "Where there is coercion, there cannot be consent". I agree.