Consistency & Clarification: The Solution to the Misapplication of the Plain View Doctrine - B Macht
Author: Brittney Macht, JD Candidate, University of Manitoba Faculty of Law
The plain view doctrine has been used by police forces in both Canada and the U.S. to justify warrantless seizures of evidence. Despite this doctrine being a widely accepted principle, there are many problematic means that could result from its application such as abuse of police powers in over search or seizure of evidence. This blog will provide an overview of the plain view doctrine itself and the potential problems associated with its application. In addition, I will discuss how this doctrine has been dealt with inconsistently amongst courts, followed by my own view on the plain view doctrine and how I anticipate the court may clarify its application in the future.
Overview of Plain View Doctrine
It is important to begin with a general definition of what the plain view doctrine is and the powers it confers. Despite warrantless searches being presumptively unreasonable, a party can justify the search as long as they can rebut the presumption.[i] A way for the Crown to rebut this presumption is to use mechanisms like the plain view doctrine.[ii]
As noted by Fontana in The Law of Search and Seizure in Canada the plain view doctrine is described as: “… when evidence falls into the view of an officer who has a right to be in the position, he is in to have the view he has had; such items have been held to be subject to seizure.”[iii] The notion behind the operation of the plain view doctrine is that a person has no reasonable expectation of privacy in what he knowingly exposes to the public.[iv]
In order for a plain view search to be justified, the officers must be (1) lawfully present in the place subject to search and seizure, (2) the evidence must be discovered inadvertently, and (3) it also must be immediately apparent.[v] Another caveat that will be quite important to our discussion here, is that the plain view doctrine confers only a seizure power, not a search power.[vi]
Misapplication and Abuse of Power
Courts have accepted the use and application of the plain view doctrine but have expressed concerns about dangers associated with its misapplication or abuse of power. The Court in R v Spindloe noted abuse of power can result if the plain view doctrine is used as a pretext to avoid obtaining a warrant, when in fact one may be required to lawfully search and seize a residence.[vii] Another problem that may arise is if police were to utilize this doctrine not for seizure but as a search power. This is not permitted as it will likely lead police to extend an exploratory search from one object to another until they come across something incriminating, leading to over seizure of evidence.”[viii] R v Spindloe noted although the test set out in R v Frieburg helps to narrow down polices discretion in seizing items in a warrantless search, the mere fact they “…purport to prescribe rules with respect to a power which involves the exercise of discretion both on the part of the police and the Court reviewing the matter…” creates difficulty.[ix] This difficulty arises due to wide range of differing opinions evidenced by courts in considering the plain view doctrine, and more specifically, in their consideration of what the plain view framework should actually look like.
Inconsistency amongst jurisprudence
An example of these differing opinions is made evident in comparing the cases of R v Stairs and R v Clarke. In R v Stairs, police after arresting the accused in the basement of a home, did a sweep of the basement out of safety concerns and observed a transparent container with a “somewhat” transparent lid sitting on the floor.[x] Here, the Court found that since the trial judge noted that the officer who found the container was in fact telling the truth as to its location, and that one could somewhat see the contents of the container through it, they were entitled to deference and the evidence was in fact in plain view.[xi] It is important to note however, since the container had a “somewhat” transparent lid on it and was sitting on the basement floor, by looking at it from a standing position, one would likely not be able to see its contents until the container is picked up and its lid is removed. This would extend then the immediately apparent factor into a “somewhat” apparent requirement.
Comparing this to the case of R v Clarke, police here were provided consent by the accused spouse to search the home.[xii] In entering the garage, the police looked under an opaque tarp finding illegal firearms.[xiii] The Court here held that the items here were in fact not in plain view and the accused s. 8 rights were violated.[xiv] These two cases illustrate how both police and courts have a great deal of discretion in deciding if evidence was in fact in plain view. Clearly, there is still a wide discretionary gap in interpreting the plain view doctrine which allows for inconsistent results to occur in situations involving similar factual scenarios.
A need for clarification
When the plain view doctrine was first accepted as an exception to warrantless seizure, rigid requirements were instated to guide police and the courts in ensuring the seizure of evidence was in fact appropriate. Now, such a departure by courts from this strict standard makes me question the validity of the doctrine and the ways it can be improved to adjust for the lack of consistency in its application. A common theme amongst these cases involves the police seizing items that are questionably in plain view. I think in order to ensure consistent results; clarification is needed by the courts in adjusting the doctrines framework to include what exactly is considered in plain view to be subject to seizure. This will help to avoid the over seizure of evidence or an unnecessary exploratory search by providing police with more definitive criteria.
I believe this reform is necessary as my review of Canadian jurisprudence only leaves me with more questions than answers as to what is in plain view; does the doctrine include an item one has to pick up to disclose its contents? Does it include semi-transparent objects? Does this include how open the item is to the viewpoint of the officer? If courts were to provide clarification on this issue, I believe it would create a more consistent result and lead to a decrease of s. 8 Charter violations.
Generally, the plain view doctrine is a widely accepted principle that works to justify a warrantless seizure by police. Regardless of its common application, it is important to bear in mind the potential problematic means police could take to justify its use. As discussed, the plain view doctrine requires further clarification by the courts due to its inconsistent application as was evidenced in Stairs and Clarke. I believe that by the Court reforming the plain view criteria to include a conclusive definition of what qualifies as plain view, a more precise “checklist” would be created which the police could look to in justifying a seizure of evidence. Furthermore, it would also decrease the amount of s. 8 Charter claims brought before the court, and eventually, have the potential of assisting in decreasing the back log of criminal cases plaguing our provincial court system.
Hopefully, these issues will be clarified in the coming months when the Supreme Court releases their decision in Stairs.
[i] R v Spindloe, 2001 SKCA 58 [Spindloe]. [ii] Ibid at para 22. [iii] Ibid at para 25. [iv] Ibid at para 53. [v] R v Frieburg, 2013 MBCA 40 at para 63 [Frieburg]. [vi] Ibid. [vii] Spindloe, supra note 1 at para 37. [viii] Ibid at para 50. [ix] Ibid at para 38. [x] R v Stairs, 2020 ONCA 678 at para 41, 66 [Stairs]. Appeal to Supreme Court heard on 2 November 2021. Judgment reserved. Docket No. 39416. [xi] Ibid. [xii] R v Clarke, 2017 BCCA 453 at para 17 [Clarke]. Leave to appeal to Supreme Court dismissed 12 April 2019. Docket No. 38435. [xiii] Ibid at para 69. [xiv] Ibid.