Canadian Criminal Procedure and Practice/Search and Seizure/Rights against Search and Seizure

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General Principles[edit]

The relevant Charter provision states under the heading of "legal rights":

8. Everyone has the right to be secure against unreasonable search or seizure.

Privacy is "at the heart of liberty in a modern state".[1] It is "essential for the well-being of the individual" and has a profound significance for the public order."[2] It is also a “protean concept”, meaning that it tends to be highly variable and change.[3]

The purpose of the right under s. 8 is to protect "the citizen's right to a reasonable expectation of privacy" [4] and to "prevent unreasonable intrusions on privacy, not to sort them out from unreasonable intrusions on an ex post facto analysis". [5] It is for this reason that the principle of reasonable expectation of privacy is a "normative rather than a descriptive standard".[6]

The right is concerned with balancing the state's interest in law enforcement and privacy interests of persons.[7] It is only when the state can "demonstrate the superiority of its interest to that of the individual" that a search can be valid.[8] This point exists where there is reasonable and probable cause which lies at the point where "point where credibly-based probability replaces suspicion".[9]

Under this section police are prohibited from "unreasonable" searches. The inquiry of the lawfulness of a search is based on whether the search was "reasonable" in the circumstances. The circumstances include the nature of the duty performed as well as the purpose of the search.[10]

A search is only subject to Constitutional review where the search intrudes on a reasonable expectation of privacy of the accused. [11] Only where the privacy right exists that there is an inquiry into the reasonableness of the search.[12]

A lawful search must be (a) authorized by law; (b) the law itself must be reasonable; and (c) the manner in which the search was carried out must be reasonable.[13]

A search consists of any state interference of a person's privacy interests.[14] As such, there is little distinction between the initial intrusion itself and the search subsequent to intrusion. [15]

  1. R v Edwards, [1996] 1 SCR 128
  2. R v Edwards at 61
  3. R v Tessling 2004 SCC 67 at para. 25
  4. R. v. Colarusso, 1994 CanLII 134 (SCC), [1994] 1 S.C.R. 20 at 70
  5. R. v. Feeney, [1997] 2 S.C.R. 13 at 47
  6. R v Tessling at para. 42
  7. R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432 at 17
  8. Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145 at p.160
  9. Hunter et al. v. Southam Inc at p. 114, 115
  10. R. v. Nicolosi 1998 CanLII 2006 (ON C.A.) [1]
  11. R. v. Edwards 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128 at para. 45
  12. R. v. Edwards, [1996] 1 S.C.R. 126 [2]; Hunter v. Southam Inc., 1984 CanLII 33 (S.C.C.), [1984] 2 S.C.R. 145.
  13. R. v. S.A.B., 2003 SCC 60; R v Collins, 1987 CanLII 84 (SCC)
  14. R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, at para 15
  15. R. v. McCormack, [2000] B.C.J. No. 143 (B.C.C.A.) at para 5

Meaning of a "Search"[edit]

Any police conduct interfering with a reasonable expectation of privacy is a "search".[1]

Any "inspection is a search" where where a "person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access".[2]

Knocking at the door for a investigative purpose is not a search.[3]

However, going onto private property and peering into windows while attempting to detect odours of marijuana can constitute a search.[4]

Merely peering into a car windows at night using a flash-light while the car in on a public highway is not a search.[5]

Detection of an odour of marijuana from a bag, by an officer using his own senses, while performing other duties does not constitute a search.[6] This is distinct from detection with the use of technology, such as a sniffer dog or a FLIR device.[7]

However, police observations of stains on a shirt visible to the public is not a search.[8]

  1. Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145
    R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128
    R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227 at para. 15
    R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527 at 533 (only “[i]f the police activity invades a reasonable expectation of privacy, [that] the activity is a search”)
  2. R. v. Cole, 2012 SCC 53 (CanLII), at para. 34
  3. See R v MacDonald, 2012 NSCA 50 at 19
    R. v. Hope, 2007 NSCA 103 at para. 27
    R. v. Evans, [1996] 1 S.C.R. 8 at para. 8
  4. R. v. Kokesch 1990 CanLII 55 (SCC), (1990), 61 C.C.C. (3d) 207 (S.C.C.)
  5. See R. v. Mellenthin 1992 CanLII 50 (SCC), (1992), 76 C.C.C. (3d) 481 (S.C.C.) at 486-87
  6. R. v. Rajaratnam, 2006 ABCA 333, 2006 ABCA 333, 67 Alta. L.R. (4th) 22
  7. e.g. R v Tessling [2004] 3 S.C.R. 432, 2004 SCC 67
  8. R. v. Hamadeh, 2011 ONSC 1241 at 132 to 145

Meaning of "Seizure"[edit]

A "seizure" in essence is the "taking of a thing from a person by a public authority without that person's consent".[1] An individual who gives something to an officer does not constitute a seizure. Rather it is merely the receipt of a thing.[2]

Any "taking is a seizure" where "a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access".[3]

A seizure does not have to be connected to a search.[4]

Valid consent in this context is determined based on indicia such as:[5]

  1. there was a consent, express or implied;
  2. the giver of the consent had the authority to give the consent in question;
  3. the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
  4. the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
  5. the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,
  6. the giver of the consent was aware of the potential consequences of giving the consent.

Taking of a photograph by police has been considered a search or seizure.[6]

  1. R. v. Dyment, 1988 CanLII 10, [1988] 2 S.C.R. 417 at para. 26
    R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227 at para. 15
  2. R. v. Wills, 1992 CanLII 2780 (ON CA) at p. 347-348
    Illinois v. Rodrigues, 110 S. Ct 2793 (1999)
  3. R v Cole at para. 34
  4. R. v. D.L.W., 2012 BCSC 1700 (CanLII) at para. 63
  5. R. v. Wills, 1992 CanLII 2780 (ON CA) at p. 353
    adopted in R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, at p. 162
  6. R. v. Abbey, [2006] O.J. No. 4689 (S.C.J.); reversed on other grounds, 97 O.R. (3d) 330 (C.A.), [2010] S.C.C.A. No. 125: police took a photo of the accused's t-shirt after removing it from his body

Zones of Protection[edit]

The Charter right protects a person's reasonable expectation of privacy. This is a protection of persons not places.[1]

The right manifests itself in protecting the zones of the person, territory, and information.[2]

  1. See Katz v US, 389 US 347 (1967) at p. 351
  2. R. v. Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432
    R. v. Gomboc, 2010 SCC 55, [2010] 3 SCR 211 at para. 19

Personal Privacy[edit]

Personal privacy "protects bodily integrity, and in particular not to have our bodies touched or explored to disclose objects or matters we wish to conceal."[1] It is for that reason that it is considered the strongest of the forms of privacy.[2]

This form of privacy is most often considered in a strip search[3] or a warrantless seizure of a bodily sample.[4]

  1. R v Tessling, [2004] 3 SCR 432 at para 21
  2. ibid.
  3. e.g. R v Golden, [2001] 3 SCR 679
  4. e.g. R v Stillman, [1997] 1 SCR 607
    R v Colarusso, [1994] 1 SCR 20

Territorial Privacy[edit]

Privacy over personal territory traces back to the English common law with the maxim that "the house of everyone is to him as his castle and fortress".[1] This has since been adopted into the common law of Canada and the Canadian Charter of Rights and Freedoms.[2]

  1. Semayne's Case at para. 1
  2. Adopted in common law in Eccles v. Bourque et al., 1974 CanLII 191 (SCC), [1975] 2 SCR 739,
    Adopted as applicable to Charter in Colet v. The Queen, 1981 CanLII 11 (SCC), [1981] 1 SCR 2

Informational Privacy[edit]

The right protects the "biographical core of personal information" that includes "information which tends to reveal intimate details of the lifestyle and personal choices of the individual."[1]

  1. R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 SCR 281

Purpose of Search[edit]

The purpose of the search is a relevant to the analysis of the search. The most frequent form of search is a search for evidence of a commission of an offence, criminal or otherwise. Secondarily, there will be searches for the purpose of officer safety. Each type of search will have different scope of powers of search.

Party Performing the Search[edit]

Section 8 of the Charter governs searches by government and its agents. The scope and degree of privacy is always with respect to a particular party.

An employee of a private company become an agent of the state when they are directed to perform a task by the police.[1] However, where the actions of the employee, company, or person, were strictly voluntary then they are not agents of the state.[2]

A police informer wearing a wire is an agent of the state.[3]

Employees of government agencies, such as social workers, who discover or investigate possible offences are agents of the state.[4] Similarly, a private citizen performing a citizen's arrest and searching a person in anticipation of the arrival of the police is an agent of the state.[5]

An Internet Service Provider forwarding information on the discovery of child pornography is acting as an agent of the state.[6]

  1. R. v. Liang, 2007 YKTC 18 at para 241
    R. v. Dorfer, 1996 CanLII 10214 (BC CA) at para. 39
  2. R v Gomboc 2010 SCC 55, [2010] 3 SCR 211
    c.f. R. v. Poh, 2011 MBQB 214
  3. R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 SCR 595
  4. R. v. Choy, 2008 ABQB 737 at para 28 - social worker discovering bruising
    R. v. Westrageer et al, 2005 BCSC 1558 at para 43: social working investigating child welfare complaint
    R. v. Chang, 2003 ABCA 293 : private security guard seizing property for police c.f. R. v. Allen, 2010 CanLII 73011 (NL PC)
  5. R. v. Lerke, 1986 ABCA 15
  6. R. v. Weir, 2001 ABCA 181 at para. 11

See also[edit]