This week on Legally Speaking with Michael Mulligan:

Section 8 of the Charter provides that everyone has the right to be free from unreasonable search or seizure.

A search conducted by the police, without prior judicial authorization, is presumptively unreasonable.

One of the exceptions to this principle is that police are permitted to conduct searches incidental to a lawful arrest.

If a police officer has reasonable grounds to believe that someone has committed a criminal offence, they are permitted to arrest them.

When arresting someone, a police officer is permitted to search them, and the areas surrounding the person being arrested for safety, means of escape, and evidence of the offence for which the person is being arrested.

In a case discussed on the show, the Supreme Court of Canada considered if the police have the authority to search a person’s home, beyond the immediate surroundings, when arresting someone.

The Supreme Court of Canada concluded that, when arresting someone in their home, they are only permitted to conduct a search, beyond the area immediately surrounding the person being arrested, they must have reasonable grounds to suspect that there is a safety risk that would be addressed by the search and the search, for safety purposes, must be conducted in a reasonable manner, given the high privacy interest in a home.

Also, on the show, a proposed class action against the University of Victoria for failing to refund the cost of parking passes when in-person classes were suspended because of COVID.

One of the claims being made by the student who made the claim was that the contract for the parking pass was “frustrated” because of COVID and the university stopping in-person classes.

For a contract to be frustrated, in a legal sense, there are two requirements:

1.A qualifying supervening event for which the contract makes no provision, is unforeseen and is not the fault of either party, which

2.Causes a radical change in the nature of a fundamental contractual obligation.

Because the 12-month parking pass contract provided that it could be cancelled, for any reason, within the first 4 months, for a pro-rated refund, the judge hearing the case found that provision had been made for intervening events of any kind.

In addition, the judge concluded that the parking pass contract provided only for parking and did not include an implied term that the university would be open for classes. The student was still permitted to park at the university, even if there would be no reason to do so.

As a result, the judge dismissed the claim and ordered the student making the claim to pay costs to the university.

Finally, on the show, a judge dismissed an application for an interim injunction to permit mink ranching to resume in BC.

Because COVID passes easily to and from mink and humans, the province of BC has prohibited their ranching. This easy transmission has the potential to facilitate mutations in the virus.

Despite the potentially irrepealable harm to mink farmers, the judge concluded that deference was required to the government’s efforts to promote the public interest.

Follow this link for a transcript of the show and links to the cases discussed.