Section 8 of the Charter of Rights and Freedoms: Search and Seizure
Section 8 of the Canadian Charter of Rights and Freedoms protects your right to be free from any and all unreasonable searches and seizures.
Police officers cannot search your person, home, office, or car on a whim or mere suspicion. They must have the legal right to search before they have the power to search you and your property.
The most common types of searches are those which occur upon arrest, or within your home or office, and increasingly popular are searches of computer hard-drives. When are these searches lawful?
When you have been lawfully arrested the arresting officers have the authority to conduct a search incidental to arrest. However, the arrest must be lawful for the subsequent search to be authorized by law.
In addition, the officer must have a reasonable basis upon which they believe a search is necessary. That means, at the time of arrest, there must be some evidence the officer can identify that justifies his/her belief that conducting the search will uncover either relevant evidence or safety hazards, such as drugs or weapons.
If you are arrested and a search of your person or car is conducted sometime after your arrest, it may be unlawful. In Caslake v R, the accused was arrested for drug possession and taken into custody.
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While in custody the police searched his car to take an inventory of its contents. The court found that the search was unlawful because it was not done to find drugs. A search incident to arrest must be related to the offence upon which you are arrested or for officer safety.
Also, any search conducted subsequent to an arrest must be carried out in a reasonable manner. The officers are permitted to use as much force as is necessary in the circumstances, but are not permitted to perform more invasive forms of searches unless they can be justified.
For instance, if an individual is going to be held in custody and will be placed with other individuals who are in custody, a strip search may be justified on the grounds that contraband and weapons could be dangerous to the person or other inmates.
Search incidental to arrest does not authorize the police to conduct a strip search unless the person is going to be placed in custody with other individuals or there are reasonable grounds to believe that the person is concealing evidence or contraband. A strip search is very intrusive as it requires you to remove all your clothing in the presence of a police officer.
If an immediate strip search is necessary the officers must ensure that they take all possible precautionary steps to ensure your privacy is maximally protected. For example, if it is possible they must bring you into a secluded room or area out of public view. A search incidental to arrest does not authorize the police to seize bodily samples- They cannot forcibly take a DNA saliva swab or a piece of hair.
The Courts have held that not even a discarded Kleenex tissue may be seized, if the person is in custody at the time. However this same Kleenex tissue can be seized and analyzed if it is discarded by an individual who is not in custody while in a public place. A cigarette dropped by a person outside a courthouse may be analyzed for DNA.
The police may not search your home and/or office without a valid search warrant. Even if you have committed an offence they may not enter your home to arrest you without a warrant, unless there is someone in the home that the police are in “hot pursuit” of.
Homes, offices or any structure in which you live or conduct your affairs are protected. The police may not enter upon the premises unless they have a warrant or with the consent of the occupant.
Section 487 of the Criminal Code grants Justices the power to issue a search warrant for these private places. These search warrants may only be issued by a Justice (judge) who is satisfied on the basis of sworn information that relevant evidence exists in the building that will be searched. This means, the officers must provide the court with some evidence which suggests that the items they are looking for both exist and can be found in your home/office. This requirement prevents the police from conducting fishing expeditions thereby protecting your right to privacy.
In addition, the search must be conducted in a reasonable manner. The police must be conscious of the nature of the building they’re searching. For example, if your business holds a number of confidential files, the officers must exercise extra caution, similarly in a home with children.
Protecting your right to privacy in your home/office is not over when the search is over. A search warrant may be invalidated if, the information used to attain the warrant does not establish that relevant evidence existed in the building or the information used was misleading, exaggerated, incomplete or fraudulent.
Also, there are circumstances in which your privacy expectations are lowered thereby justifying a search on a lower standard. For example, when crossing the border people are consciously aware of the heightened state interest in national security and should expect customs officers to conduct a search on a suspicion.
As with any legal issue, only a competent criminal lawyer can assess the viability of any challenge to an accusation on the basis that one’s section 8 Charter right to be free from unreasonable search and seizure is infringed.
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