Canadian criminal law is concerned with balancing society’s interest in preventing and punishing harm with preserving respect for the liberty and privacy rights of individuals. This tension is particularly relevant when the police wish to search a person or location.
Most Canadians would agree that it would be a gross invasion of privacy if the police were allowed to enter an individual’s home at any given time for no reason at all to search for evidence of crime. However, most Canadians would likely also agree that there are some situations where the police must be able to enter private homes – a clear example of this would be if the police knew that there was a kidnapped child being held within the home. The debate between privacy and crime control applies to private locations such as a home, car, or safety deposit box and to a person’s body.
The criminal law resolves the tension between society’s desire to protect the privacy interests of individuals and the police’s interest in fighting crime by protecting areas where individuals have a reasonable expectation of privacy against state interference.
Every person has a reasonable expectation of privacy with regards to their own body, which protects against illegal pat downs, strip searches, body cavity searches, fingerprinting, or DNA testing.
A person also always has a reasonable expectation of privacy in his or her own home. An individual’s reasonable expectation of privacy in any other location is assessed on a case-by-case basis. The court will consider a number of factors to determine whether or not the person had a reasonable expectation of privacy in a particular location.
As a general rule, an area in which a person has a reasonable expectation of privacy cannot be searched by the police unless the police have obtained the appropriate warrant.
The Supreme Court of Canada has stated that the ruler requiring warrants is aimed at protecting people not places. This means that the goal of the rule is to protect the privacy of individuals, not the sanctity of particular locations.
However, protecting personal privacy does yield some absolute rules dealing with location. The Supreme Court explains that the rule is meant to protect a “core of biographical information” which every individual has a vested interest in keeping private from the state and from other actors.
An individual’s body, his or her fingerprints, retinal scan, dental impression, and DNA have been ruled by the court to be clear examples of biographical information a person has a vested interest in protecting.
Thus, the body is protected against search and seizure. The home is a private sphere of activity and examining the contents of a home can reveal a lot about a person’s attributes and personal choices. The home is thus also always protected. Other locations, such as a car, bathroom stall, hotel room, or safety deposit box will be deemed to be protected if the person can demonstrate that they had a reasonable expectation that any activity they undertook in the place would be private.
In the context of a criminal trial, evidence is discovered through search of a location or person and subsequent seizure of that evidence. When a criminal defence lawyer is presented with a case, he or she must first consider whether any of the evidence was discovered by an illegal search, in other words, a search that violated the defendant’s rights under s. 8 of the Canadian Charter of Rights and Freedoms. Section 8 states that every individual has a right against unreasonable search and seizure.
Because section 8 of the Charter constitutionally protects privacy interests, the criminal defence lawyer can try to invoke a Charter remedy if he or she can demonstrate that the defendant’s privacy interest was compromised by the search and seizure of evidence.
If the criminal defence lawyer is successful in showing a breach of the defendant’s section 8 rights, the most common remedy available is exclusion of the evidence from the defendant’s trial. If the evidence is excluded it cannot be used by the prosecution at the defendant’s trial.
This can be extremely beneficial for the defence, especially in possession cases where evidence that the accused was in possession of an item, usually a controlled substance or a weapon, is central to the prosecution’s case. If the criminal defence lawyer can prove that (i) the weapon or drug was discovered and/or collected in a manner that violated the accused’s Charter rights and (ii) the breach of the defendant’s Charter rights meets the test for the remedy of exclusion, any reference to the item discovered will be stricken from the record at trial. In possession cases, this is fatal to the prosecution’s case. Thus, section 8 privacy rights are a very important took that criminal defence lawyers using when building a defence in possession cases.
In Canada, the police do not have a general power to search places in which people have a reasonable expectation of privacy. They can only search such a place if the government grants them a specific power to search pursuant to law.
Generally speaking, Canadian law only grants the police the power to search a private area if they have obtained a permissive document, known as a warrant, in advance of the search. Both the Criminal Code of Canada and The Controlled Drugs and Substances Act give police specific powers to search individuals through the use of warrants.
There are four primary exceptions to the rule that the police are required to have a warrant to search a private area. The first exception is “search incident to arrest”; when an individual is legally arrested the police may perform a frisk / pat down search and a more thorough body search or strip search at the station. The police may not conduct a body cavity search pursuant to this power and must obtain a warrant to do so.
The “search incident to arrest” exception is based on a long-standing principle of criminal law known as the “ancillary powers doctrine”. The ancillary powers doctrine states that if the police are granted a power by law, they are implicitly granted the power to do all of the things required to utilize that power.
Thus, the argument goes that since the law grants the police the power to arrest individuals, and for practical and safety reasons it is necessary to search individuals in order to arrest them, the law that grants the police the power to arrest must implicitly grant them the power to search the body of the individual at the time of arrest.
The search incident to arrest exception does not extend to allow the police to search the location in which the individual is arrested, since such a search is not necessary for the police to exercise their power of arrest.
The second exception to the rule that the police may only search pursuant to a prior-obtained warrant is the emergency or exigency exception.
This exception is explicitly created by the Criminal Code of Canada and The Controlled Drugs and Substances Act. Both state that a search may be conducted without a warrant in an exigency or emergency.
Judicial interpretations of this exception have defined exigency or emergency as arising in three situations: to protect human life, to prevent the destruction of evidence, and when the police have observed a crime and are in hot pursuit of the perpetrator. The third example refers to the specific situation where the police see an individual perpetrate a crime and chase him but he manages to make it to a private dwelling.
The police cannot enter the private dwelling without a warrant. This rule allows them to enter the dwelling in hot pursuit to apprehend the perpetrator.
While there they have a very limited search power; anything that they see in plain view while apprehending the perpetrator can be collected as evidence, however they cannot enter rooms unnecessarily to search or move any items in order to conduct a thorough search.
The third exception to the warrant rule is the “search incident to detention” exception. This rule was created by the Supreme Court of Canada in a famous case called R. v. Mann. In their decision in Mann the Supreme Court, created a police power to search individuals when they detain them.
This is a very limited power. It allows the police to conduct a quick frisk or pat down to check for weapons when they detain the individual. In practice, this means that when questioning an individual, the police may frisk them.
The rationale behind this power is a concern for officer and public safety. The frisk must be reasonable; however, this is a very low threshold. For example, if an individual was wearing an outfit that consisted entirely of body hugging spandex and carried no bag such that there was absolutely no place that he or she could be hiding a weapon, the court may conclude that the police could not have had any reason to assume the person was carrying a weapon. However, in most situations, the court will conclude that a quick pat down to check for weapons was reasonable in the circumstances.
However, it is very important that the search is limited to a quick pat down for weapons. For example, if the police were to pat you down and feel something soft in your pocket they could not ask you to empty your pockets even if they believed that the substance in your pocket was drugs. This is because it is unreasonable for the police to believe that a soft package in someone’s pocket may be a weapon. When searching incident to detention the police must confine their search to a search for weapons.
The final exception to the rule that the police cannot search a private space without a warrant is the consent exception. If the individual whose privacy interest is at stake consents to the search, the search will be allowed. In R. v. Wills the Supreme Court stated that consent is only valid if the defendant made a voluntary informed decision.
Knowledge of the consequences and essential information are critical to making an effective choice. If the police lie to the individual about the nature of the search, the consent will not be upheld by the court and the search will constitute a Charter breach.
When evaluating the strength of a defendant’s case, his or her criminal defence lawyer must consider whether the police can justify their warrantless search by appealing to one of the four exceptions to the rule that they may not search a private area without a warrant.
In addition to the four exceptions to the rule about warrants, there are many types of warrant which the police may obtain to validate the search of a private place. However, the police cannot justify their search after the fact by showing that they met the preconditions necessary to obtain a particular type of warrant. The warrant must be obtained prior to the search or the search will be deemed illegal and unconstitutional by the court.
There are two basic types of warrants that the police can use to conduct a general search of an area. These warrants allow the police to conduct a traditional search – where the police enter the area and search it manually. The first kind is known as a conventional warrant.
The police power to search pursuant to a conventional warrant is created by s. 487 of the Criminal Code; thus criminal defence lawyers and other legal practitioners often refer to these warrants as “487 Conventional Warrants”. In order to obtain a 487 Conventional Warrant the police must appear before a Justice of the Peace or a Judge and “swear an information” under oath. The information is a document that sets out why the police believe that they have reasonable and probable grounds to believe that a search of a specific area will uncover evidence that is part of an ongoing investigation. Thus, the police must specify in the information
(i) a specific discreet location to be searched,
(ii) an ongoing investigation into a specific individual for a specific criminal offence,
(iii) what specific items the police are searching for, and
(iv) why they believe that a search of the specific area will reveal evidence of the specific crime. The officer must swear under oath that the contents of the information are true. If the justice of the peace or judge agrees that the warrant is sufficiently specific and reveals that the police have reasonable and probable grounds to search the location the justice of the peace or judge will issue the search warrant.
A 487 Conventional Warrant is more commonly used to search for evidence, instruments, and information that reveals the whereabouts of suspected criminals (for example, they may search the suspect’s mother’s house to see if they can find information about his or her current whereabouts). Once a warrant is issued, the police may execute the warrant on the day named in the warrant. A 487 Conventional Warrant must be exercised before 9 PM.
The second type of warrant that grants the police a general power to search an area is a section 11 Controlled Drugs and Substances Act warrant. This warrant functions exactly the same way as the 487 Conventional Warrant: both require that the police swear an information containing the specifics of the search and disclosing reasonable and probable grounds to believe that the search will uncover evidence. However, the s. 11 CDSA warrant can only be used to search for drugs. There are two specific advantages to obtaining a s. 11 CDSA warrant rather than a 487 Conventional warrant when searching for drugs. First, the s. 11 CDSA warrant allows the police to search the area after 9 PM; this allows the police to surprise individuals in the middle of the night with a search, a method that they claim prevents individuals and prevent the hasty destroying evidence of drugs when the police enter the home.
The second advantage is that the s. 11 CDSA warrant allows the police to search not only an area but also any person found within that area. Thus, the police have the power to perform a body search on any individual found in the location to be search for the purposes of finding drugs. In the context of a 487 Conventional Warrant the police are only empowered to conduct a brief pat down to search for weapons of any person found within the area where they are executing the warrant.
There are also special warrants that exist depending on the type of evidence that the police wish to seize. For example, to seize alleged proceeds of crime the police must obtain a Proceeds Warrant. This arises most often in the context of organized crime or money laundering investigations. Once the police have seized proceeds they need only release them to allow the defendant to pay for legal expenses.
The police must also obtain a special warrant if they want to seize and individual’s computer. Originally, the police could seize a computer pursuant to a 487 Conventional Warrant; however, this practice was a real hardship on businesses under investigation as it often meant they lost access to crucial computer files and/or the ability to continue their operations, leading to bankruptcy. Now, the police must obtain a special Computer Warrant to seize a computer under s. 487(2.1). This provision also gives the police the option of copying the hard drive of the computer in lieu of seizure. Section 487(2.2) obliges anyone present at the scene of the crime to assist the police in copying computer files by supplying passwords, etc.
Finally, the police can obtain a Production Order under section 487.011 and .012 of the Criminal Code to order that a company produce whatever document the police require for their investigation. A production order could order the company to produce a suspect’s cell phone bill, visa bill, receipt of purchase, etc.
There are also a number of warrants that deal with the use of new investigative technologies used by the police such as wiretaps, dialed number recording devices, beeper trackers, and video surveillance. Some of these new technologies require that the police obtain a special warrant. For example, to put a beeper tracker on a person’s car or a personal item that they carry to monitor the person’s movement the police must get a Beeper Tracking Warrant. The police must demonstrate to a Justice of the Peace of Judge that they have reasonable grounds to suspect that that the individual is engaged in criminal activity. This is a lower standard that the reasonable and probable grounds required to obtain a general warrant. However, the Beeper Tracking Warrant can only last sixty days. The same is true for a Dial Number Recording Warrant.
This is a warrant that allows the police to attach a device to your telephone which monitors what numbers you are calling. This too requires that the police demonstrate only a reasonable suspicion and has a maximum length of sixty days.
For other new technologies the police must obtain a general technology warrant. Under s. 487.01 Section 487.01 of the Criminal Code states that all new technology that invades privacy may be authorized by a general warrant. This means that if the police want to use a new technology for investigation that invades privacy they may obtain a warrant under this provision. The warrant must be obtained from a judge in the Ontario Court of Justice and cannot be granted by a Justice of the Peace. The police must demonstrate that use of the new investigative technology is in the best interests of justice and that it is necessary in order to further the investigation. Thus, the police must show that no other technique will help them extract the information that they need. The “best interests of justice” criteria means that a Judge can refuse to grant the warrant even if the police show reasonable and probable grounds if, in the Judge’s opinion, the new investigative technology is too much of an imposition on privacy. This is also the provision used to obtain a warrant for a Covert Search; a search of an individual’s home that occurs without the suspect’s knowledge while he or she is out of the home]. Wiretaps are considered a special kind of technology that have their own warrant provisions in sections 186 through 189 of the Criminal Code. For more information on wiretaps see our blog: Wiretaps.
The final category of warrants are warrants for bodily substances. The police cannot use a 487 Conventional Warrant to obtain blood samples, DNA samples or Bodily Impressions (e.g., dental impressions). A Blood Warrant must be obtained pursuant to section 256 of the Criminal Code. This section is generally sued to obtain a person’s blood alcohol level in situations where he or she cannot give a blood sample, such as if he or she is injured following a car accident. A DNA Warrant may be obtained through section 47.04 and following the Code.
The police must swear an information before a judge that there are reasonable and probable grounds to believe that a DNA sample from that particular person will further the investigation of a specific crime. The DNA Warrant allows the police to perform a hair pluck, skin prick, or buccal swab (throat swab). The DNA Warrant also allows the police to detain the individual named in the warrant for the purpose of obtaining a sample. Finally, a Bodily Impression Warrant may be obtained from a Justice of the Peace if the police can show that they have reasonable and probable grounds that the impressions will further an on-going investigation and that obtaining the impressions are in the “best interests of justice”.
Almost all warrants are obtained using generally the same procedure. An information (or “affidavit” in the case of wiretaps) is presented to a Justice of the Peace or a Judge. The police swear under oath that the contents of the information are true and the Justice of the Peace or Judge evaluates that request for a warrant based on the contents of the information and the criteria required to obtain that particular type of warrant. There is an exception to this general procedure. Section 487.1 of the Criminal Code allows the police to obtain a “telewarrant” over the phone or by fax. The Justice of the Peace will then approve the warrant by facsimile and fax it back to the police.
Through this mechanism, the police can obtain a warrant where it is impractical for them to appear before a Justice of the Peace. This makes it much harder for the police to enter a home based on the emergency or exigency exception explained above as it will be hard for the police to prove that emergency conditions were so serious that they did not have time to call or fax in a telewarrant. This protects individual privacy from invasion without the protections guaranteed by a warrant.
Even if the police conducted their search of the defendant’s home pursuant to a warrant, the individual’s criminal defence lawyer will still want to evaluate the warrant to see if it is valid. If there are problems with the validity of the warrant, the criminal defence lawyer may be able to argue that the warrant was invalid rendering the search unconstitutional and justifying the exclusion of evidence under the Charter. The criminal defence lawyer will look at three aspects of the warrant to determine its validity:
(1) the face of the warrant: is the warrant specific? Does it list the specific items to be searched for? Does is disclose a specific crime the individual is under investigation for?;
(2) the reasonable and probable grounds: did the police really have reasonable and probable grounds? Did the Justice of the Peace or Judge err in finding that reasonable and probable grounds existed?; and
(3) the execution of the warrant: did the police use unreasonable force in executing the warrant? Did the police take more items than necessary to continue their investigation?
If the criminal defence lawyer is able to find problems with the warrant, he or she may be able to convince the court to declare the warrant invalid and exclude evidence obtained in the course of the search. Some deficiencies with the warrant may be insufficient to render the warrant invalid. For example, if the police seized more evidence than necessary this will likely fail to render the warrant invalid.
However, this situation, known as overseizure, is one of the few occasions in criminal law where the defendant’s criminal defence lawyer may make a motion for compensation by the government and the defendant may be awarded costs in lieu of exclusion.
Know your rights. Contact Kostman and Pyzer, Barristers today for your free consultation if you are facing criminal offence charges.