Quels sont les critères devant être rencontrés pour qu'un consentement à une fouille soit valide?

R. v. Rutten, 2006 SKCA 17 

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[34]  With respect, this conclusion does not conform to the requirements identified by the Supreme Court of Canada and by this Court for determining whether there has been valid consent to a search in circumstances where the search would, without consent, violate the accused’s constitutionally protected rights.  In Mellenthin, the Supreme Court held that an individual searched can consent to the search, but the consent must be voluntary and informed.  Where an individual is detained he may feel his options are limited. In this case, the appellant’s handing over of the pickle jar smacks of acquiescing in what the appellant must have believed was inevitable.

 

[35]  This Court has on three recent occasions set out the requirements for a valid consent to search: R. v. Sewell (2003), 2003 SKCA 52 (CanLII), 175 C.C.C. (3d) 242; R. v. Perello (2005), 2005 SKCA 8 (CanLII), 193 C.C.C. (3d) 151; and R. v. Luc, supra. The requirements were summarized in Luc, as follows:

[31]  The requirements for a valid consent with regard to a waiver of s. 8 Charter rights were considered by this Court in R. v. Sewell (2003), 2003 SKCA 52 (CanLII), 175 C.C.C. (3d) 242 (Sask. C.A.).  Speaking for the Court, I said at pp. 254-55:

[17]     The requirements for a valid consent are succinctly outlined in R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 (Ont. C.A.) at 546. ... Doherty J.A., speaking for the Ontario Court of Appeal, crafted the test to be used in these cases, in these words:

      In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that:

        (i)  there was a consent, express or implied;

        (ii)  the giver of the consent had the authority to give the    consent in question;

        (iii)  the consent was voluntary in the sense that that word is used in Goldman, supra, [1979 CanLII 60 (SCC), [1980] 1 S.C.R. 976], and was          not the product of police oppression, coercion or other         external conduct which negated the freedom to choose      whether or not to allow the police to pursue the course of conduct requested;

(iv)   the giver of the consent was aware of the nature of  the police conduct to which he or she was being asked to consent;

        (v)  the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct         requested, and

        (vi)  the giver of the consent was aware of the potential    consequences of giving the consent.

[18]   These requirements comport with what I said in Nielsen, [(1988), 1988 CanLII 213 (SK CA), 43 C.C.C. (3d) 548], at p. 17:

   ... In other words, if the Korponay [Korponay v. Canada (Attorney General), 1982 CanLII 12 (SCC), [1982] 1 S.C.R. 41] standard is accepted, as I think it should be, the onus was on the Crown to establish that the accused had full knowledge of his right to be secure against an unreasonable search of his truck, that he had full knowledge of the effect the waiver would have on that right (i.e., that he knew the significance of what he was giving up when he waived the right), and that the accused clearly and unequivocally waived the right to a warrantless search of the truck knowing that the searcher did not have a reasonable belief that an offence had been committed under the Act.

[19] The requirements also accord, in large measure, with the basic requirements laid down by the majority of the Supreme Court of Canada, speaking through Iacobucci J. in R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145 at 162 for "a waiver of right to be secure against an unreasonable seizure":

   In order for a waiver of the right to be secure against an unreasonable seizure to be effective, the person purporting to consent must be possessed of the requisite informational foundation for a true relinquishment of the right. A right to choose requires not only the volition to prefer one option over another, but also sufficient available information to make the preference meaningful. This is equally true whether the individual is choosing to forego consultation with counsel or choosing to relinquish to the police something which they otherwise have no right to take.

 

[36]  As in the previous cases, it is necessary to ask whether the Crown has established these requirements on a balance of probabilities.  The trial judge made no reference to the requirements established by these cases or to the onus of proof on the Crown on this point.