Search & Seizure -Your Rights & Your Obligations
April 17, 1982 is a historically significant day for all Canadians. It was on this day that the Canadian Charter of Rights and Freedoms came into effect. The Charter sets out those rights and freedoms that Canadians believe are essential in a free and democratic country. Some of those rights include:
• Freedom of expression.
• The right to equality, including the equality of men and women.
• The right to use either of Canada’s official languages.
• The legal rights of persons accused of crimes.
With respect to the last, the Charter protects a number of specific legal rights of accused persons, including the right:
• To life, liberty and security of person.
• To be secure against unreasonable search or seizure.
• Not to be arbitrarily detained or imprisoned.
• To be informed promptly of the reasons for being arrested as well as the right to retain and instruct counsel without delay.
• To be tried within a reasonable time and the right to be presumed innocent until proven guilty.
• Not to be subjected to any cruel and unusual treatment or punishment.
• Against self-incrimination.
• To the assistance of an interpreter.
Over the next several editions of Legal Issues we will review a number of these rights. We begin our series with the right set out in Section 8 of the Charter.
Everyone has the right to be secure against unreasonable
search or seizure.
The right to be secure against unreasonable search or seizure stems from the reasonable expectation individuals have to privacy. While the law does give the police and other government investigators certain powers of investigation through search and seizure, those powers are subject to the limitations imposed by section 8 of the Charter. In fact, evidence that is obtained in violation of this right may be excluded if it is established that the admission of it in the proceedings would bring the administration of justice into disrepute.
THE SEARCH
A police search is not meant to be a fishing expedition, rather its purpose is to secure evidence which will help prove that a particular crime has taken place. For the police to lawfully enter any premises to conduct a search for such evidence, they must generally act under the justification of some previously issued authorization, usually a search warrant.
SEARCH WARRANTS
Most search warrants are issued pursuant to section 487(1) of the Criminal Code. A search warrant is, in most cases, issued by a justice of the peace. To be issued, an informant, usually a police officer, will swear what is called an information and then appear before the justice of the peace to swear to the truth of the information. The information will include, at least to some degree, the following:
o A description of the alleged offence.
o The items the police believe are on the premises and that they wish to seize.
o An accurate description of the location to be searched.
o The actual grounds upon which the police believe that the items are located at the particular premises.
In order to properly execute the search, the officer must have the warrant in his or her possession. In the case of a home, unless there is concern that evidence may be destroyed, the police must make a demand to open before they can force their way in. And only force that is reasonably necessary should be used to effect any entry or search. The warrant must be produced on request. Although a person should verify that the search is properly authorized, neither the affected individual nor a lawyer can actually impede the search.
WARRANTLESS SEARCHES
While there are instances when a search can be conducted without a warrant, it is not as common as American television would have you believe. The police may conduct a search without a warrant if the property owner gives his or her consent to the search.
A warrantless search can be conducted in the case of an emergency, specifically if the police believe that an offence is being or is about to be committed and that a person will be injured.
Finally a search can be conducted without a warrant following a lawful arrest. In such cases, the officer is entitled to search the person and the immediate surroundings to ensure his or her safety as well as that of the public, to protect evidence from being destroyed and to discover evidence.
The following cases are two examples of searches that were challenged by the accused.
R. v. WILLIS
The accused was spotted by police as he ran through a clearing in a residential area, carrying a white sheet with items bundled inside of it. Although they were unaware that any crime had taken place, the police pursued the accused and eventually stopped him. Although he no longer had the white sheet, the accused was obviously holding something up in his jacket. The accused, who was known to police, was arrested. He was patted down and certain items were found which were linked to a robbery that took place within the same time period a few streets away. A subsequent investigation located the white sheet and property belonging to the victim near the houses in the area.
At trial the accused argued that his right against unreasonable search and seizure had been violated. He claimed that the police had not had reasonable grounds to stop him since they had in fact lost sight of him on two occasions during their pursuit. He argued that the police had no right to arrest or search him.
The court concluded that the accused’s rights had not been violated. The knowledge of the past violence of this accused, the nature of the suspicious circumstances that led to the detention and the bulge in the jacket were objectively justifiable reasons to substantiate officer safety concerns.
R. v. EVANS
Acting on an anonymous tip, police officers knocked on the accuseds’ door. They smelled marijuana and immediately arrested the accuseds. The police secured the premises, including several marijuana plants. A search warrant was subsequently sought and executed. The accuseds’ argued that their right against unreasonable search and seizure had been violated.
The Supreme Court of Canada found that the unconfirmed anonymous tip was clearly insufficient to justify a warrant and therefore the search was unreasonable. However, the court went on to conclude that the violation of the accuseds’ rights was not particularly grave and the police had acted in good faith. The result was that the evidence was admissible. The Court decided that excluding the evidence would tarnish the image of the administration of justice much more than admitting it would.
If you require further information about a criminal matter please contact Jerry Birenbaum.
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