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.