Search and Seizure0

Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search or seizure.” In terms of the police and law enforcement agencies, s. 8 of the Charter provides an important buffer between the rights of government and the right of the individual. The government’s right to enforce laws must give way to the right of the individual to be secure against an “unreasonable” search or seizure. Generally, a search is something that violates one’s reasonable expectation of privacy, while a seizure involves the taking of a substance or a thing belonging to a person by the police.

The rules governing police powers of search and seizure are very complex. Some of the police powers are found in law statutes, while others have been established at common law (by the courts). The most familiar power to search and seize is by way of a search warrant. The Criminal Code requires that the police obtain permission from a justice of the peace or a judge before conducting a search. The police must demonstrate to the justice of the peace or a judge that they have reasonable grounds to infringe on a person’s privacy. The police will almost always require a search warrant to search or seize in situations where the individual has a “reasonable expectation of privacy.” The courts have found that an individual has a reasonable expectation of privacy in his or her body, in a home, and in a hotel room. On the other hand, courts have found that an individual does not have a reasonable expectation of privacy in garbage left at the curb, things that are in plain view of the public, and cultivation of marihuana on land where the individual is a trespasser.

On the basis of common law authority, a police officer may, without a warrant, search a person who has been arrested. At the time of arrest, a police officer may seize from the individual any property that is connected with an offence or any weapon or item that may be dangerous to the police officer’s safety. Sometimes, police stumble upon evidence that does not require a warrant for its seizure. For example, a police officer who pulls over a driver for a speeding ticket and while speaking with the driver notices a gun on the passenger’s seat, is lawfully entitled to seize the gun under the “plain view doctrine.”

Another means by which police may search and seize without a warrant is to obtain the consent of the individual. However, the courts have set a high test for the police to meet in obtaining an individual’s consent. Firstly, the consent must be voluntary and must not be obtained by force or by intimidating conduct by the police. Secondly, the consent must be informed. The individual should have enough information to allow a meaningful choice as to whether to permit the search or seizure. At the very least, the police officer should inform the individual that he or she has the right to refuse permission for the search or seizure.

So, what happens when the police do not follow the search and seizure rules established by statute and the courts? Under s. 24(2) of the Charter, any person whose Charter rights have been violated – for example, by an unreasonable police search or seiz­ure – may apply to a court to have evidence excluded at his or her trial. However, not every Charter violation will cause evidence to be excluded. The violation must be a serious one that brings the administration of justice into disrepute. In determining whether to exclude evidence, the trial judge will consider the seriousness of the police misconduct, the impact of the breach on the Charter-protected interests of the accused, and society’s interest in the adjudication of the case on its merits.

The number of search and seizure cases decided in the 30 years that the Charter has existed must range into the tens of thousands. In this article, I have simply attempted to outline the basic framework of police powers balanced against the rights of individuals to be free from unreasonable search or seizure. Some further sub issues arising from search and seizure by police will be explored in future articles in this column.

Impaired Driving0

The Criminal Code of Canada makes it an offence if a driver’s ability to operate or have care or control of a motor vehicle is impaired by alcohol and or drugs. Courts have defined “impairment” to mean any degree of impairment ranging from slight to great. So for example, swerving between lanes, having slurred speech or bloodshot eyes, and a strong odour of alcohol emanating from a driver’s breath may be used as evidence of impairment by alcohol.

Impairment by drugs may be more difficult to detect. However, the Criminal Code of Canada grants the police the power to conduct standard field sobriety tests on the driver – such as walking in a straight line or standing on one leg to determine whether the driver has good balance or not.

If the police believe on reasonable and probable grounds that a person has been in care or control or driven a motor vehicle within the previous three hours and the person is impaired by alcohol, then the police may demand that the person accompany them to a police station in order to provide samples of breath in a breathalyser to determine the concentration of alcohol in the person’s blood. If the police believe that the driver is impaired by drugs, the police may demand that the driver accompany them to the police station to give a sample of either oral fluid or urine (or blood in certain circumstances) to determine whether the person has a drug in their body.

If the driver is subsequently convicted of impaired driving, the minimum punishment for a first offence is a fine of at least $1,000 and a 1-year driving suspension. For a second offence, the punishment is at least 30 days in prison and a 3-year driving suspension. For any subsequent offence, the suspension is indefinite.

As well, drivers convicted of impaired driving must also complete a remedial measures program before being eligible to have their driver’s licence reinstated. The main component of the program is to install an ignition interlock for a minimum of one year for a first offence. With an interlock ignition device, the driver is not able to start the vehicle unless the driver provides an acceptable breath sample into the device. Drivers with an ignition interlock condition must not operate any vehicle without an approved interlock ignition device installed on that vehicle.

Due to changes in the law, drivers convicted on or after August 3, 2010 may be eligible to participate in an interlock conduct review program. In return for meeting specific requirements, such as the installation of an improved interlock device in their vehicle, eligible drivers that enter the program may have their driver’s licence suspension reduced.

It is important to note that a person caught driving while under suspension risks further criminal penalties ranging from a fine to imprisonment.

Rights to Counsel0

In this article we discuss the rights of individuals who have been detained or arrested by police. The Canadian Charter of Rights and Freedoms is the supreme law of Canada. Section 10(a) of the Charter provides that everyone has the right on arrest or detention “to be informed promptly of the reasons therefore;” while s. 10(b) provides that everyone has the right on arrest or detention “to retain and instruct counsel without delay and to be informed of that right.” Therefore, when a person is first arrested or detained, the police have an immediate obligation to inform the person why the police are arresting or detaining them.

The police must then tell the person that he or she has the right to retain and instruct a lawyer without delay. The right to counsel is important because it allows the person to consult with a lawyer and get advice as to whether they should participate in the police investigation of them. The Supreme Court of Canada has defined the duty on police under s. 10(b) of the Charter as having an information component and an opportunity component. With respect to the information component, a police officer must tell the person under arrest or detention that they have the right to speak to counsel without delay. Of course, many people arrested or detained do not already have a lawyer in mind or even know any criminal lawyers, so the police must also tell the person that if they do not know a lawyer or cannot afford a lawyer, they can speak to duty counsel (a free lawyer), who is available 24 hours a day. Also, where it becomes apparent to the police officer that the person does not understand the English language very well, the police should take steps to obtain the assistance of an interpreter in the person’s native language who can do the translation over the telephone in order for the person to understand his or her rights to counsel.

Once the arrested or detained person is informed of these rights, the person must decide whether they wish to speak to a lawyer at that time. If the person says “no”, then the police do not have any further obligation to contact a lawyer on the person’s behalf. If the person says they wish to speak to a lawyer, then the police must provide the person with a reasonable opportunity to do so. From this point of time and until the person actually speaks with a lawyer, the police cannot ask the person any further questions or try to gather any further evidence from the person. The police will usually wait until getting back to the police station to provide the person with an opportunity to call a lawyer. Back at the station, the person is usually put in a private room with a telephone. Sometimes, the person will have a particular lawyer they wish to contact. The police will do their best to accommodate the request and make attempts at trying to reach that lawyer. However, depending on the time of day, it may be difficult to reach a particular lawyer. After waiting a reasonable amount of time in trying to contact the particular lawyer, police will then resort to offering the services of duty counsel to the arrested person.

Generally, police are only required to allow the person to speak to a lawyer once during questioning. Once the person has consulted with his or her lawyer or duty counsel, police are free to continue questioning the person. In Canada, the lawyer is not permitted to be present with the person when the police are questioning him or her. That is why it is very important that a person have the opportunity to consult with a lawyer to determine how to deal with the police questioning.

It is also important to note that if the police either fail to inform the person properly of the right to counsel or fail to provide the person with a reasonable opportunity to consult a lawyer, then a court may find that the person’s constitutional rights under s. 10(a) or 10(b) of the Charter have been violated and may find that any statement made by the accused during police questioning is not admissible at the person’s trial.

The Right to Bail0

Section 11(e) of the Canadian Charter of Rights and Freedoms guarantees that “any person charged with an offence has the right…not to be denied reasonable bail without just cause.”

The police are granted powers by the Criminal Code of Canada to arrest individuals under a variety of circumstances. Once arrested, an accused person might be released from the scene where he or she was arrested by being given an “appearance notice.” This generally requires the accused to come to court on a particular date and time that is indicated on the notice. Accused persons may also be required to attend a police station to provide fingerprints and photographs of themselves on a date specified on the notice.

Alternatively, a person may be arrested and taken to a police station. The police may then decide to release the accused person from the police station by giving the accused person a “promise to appear.” This promise to appear will contain information regarding the courthouse the accused person must attend, as well as the date and time. The promise to appear also contains conditions of release that the accused person must obey. For example, an accused person may be prohibited from communicating with certain individuals that the police may believe are connected to the case.

Where the police have determined that they will not release the accused person from the police station, the individual must be taken to court to appear before a justice of the peace within 24 hours of the arrest. A bail hearing will take place as soon as possible, although adjournments may be required to make sure all the parties are prepared to proceed with the proceeding.

Very often, the prosecutor and the lawyer for the accused can agree on the amount of bail and conditions of release. This is referred to as a “consent bail” and the justice of the peace generally releases the accused person on the terms of the agreement. “Sureties” are generally required as part of the conditions to release an accused person on bail. A surety is usually a friend or family member of the accused person that comes to court and indicates that he or she is prepared to pledge an amount of money and is also willing to monitor the accused person while on bail.

On other occasions, there may be no agreement between the prosecutor and the lawyer for the accused person, and a “contested” bail hearing takes place. There are only three grounds for detaining an individual at a bail hearing. They are commonly known as the primary grounds, secondary grounds, and tertiary grounds. The primary grounds refer to whether the detention is necessary to make sure that the accused person will attend his or her trial. That is, whether the accused person is a “flight risk.” The secondary grounds refer to whether the detention is necessary because there is a substantial likelihood that the accused person will have further problems with the law while on bail. The tertiary grounds are generally reserved for the very serious offences like robbery or murder and considers factors such as how strong the case is against the accused person, how serious the offence is, the circumstances of the offence and whether a gun was used, and the potential length of the sentence that the accused person could receive if found guilty.

The accused who receives bail must obey all of the terms and conditions of the bail order until their trial is completed or they may be arrested and brought to court for a further bail hearing.