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Unreasonable Search and Seizure Part 1:

What is Unreasonable Search and Seizure?

Section 8 of the Canadian Charter of Rights and Freedoms states that “Everyone has the right to be secure against unreasonable search or seizure.”1 It is important to understand what makes a police search unreasonable because evidence gathered in this manner may be excluded at trial. This can have important ramifications on the prosecution’s ability to prove charges that rely on such evidence.

Traditionally, section 8 requires that state searches be conducted with a warrant; however, the result is not always so simple. In some situations warrants aren’t necessary when it would be impractical.2 This may be the case when ensuring a police officer’s safety in the course of an arrest3, when the police have a reasonable suspicion of wrong doing4 or when there is simply no time to obtain a warrant in the circumstances. Essentially, section 8 means that a search requires a warrant and if one is not provided the police must demonstrate why it was reasonable to proceed without one.5

Before determining whether a police search has intruded on a person’s rights it must be established that the individual did in fact have a reasonable expectation of privacy.6 Only where a state examination intrudes upon some privacy interest does the action constitute a ‘search’ within the meaning of section 8.”7 Otherwise, a warrant is unnecessary and the evidence will not be questioned.

Therefore, the basic question under section 8 is two-fold

  1. Did the accused have a reasonable expectation of privacy?
  2. If so, was the search conducted in a reasonable manner?

What is a Reasonable Expectation of Privacy?

The Supreme Court of Canada has recognized three main forms of privacy, namely: personal, territorial and informational.8 Personal privacy refers to bodily integrity, in particular, the right not to have one’s body touched.9 Territorial privacy refers to “the home, where our most intimate and private activities are most likely to take place”10 Finally, informational privacy refers to biographical material that reveals intimate details about lifestyle and identity.11

In order to determine whether an individual has a reasonable expectation of personal, territorial or informational privacy the court will consider the totality of the circumstances in any given search.12

When considering the circumstances it is important to note that the relevant factors may change based on the form of privacy in question. For example, when considering territorial privacy the court will look at property ownership and the ability to regulate access or exclude people.13 In one case the Supreme Court ruled an accused, Edwards, did not have a reasonable expectation of privacy over narcotics he had hidden at his girlfriend’s home. He had no right to exclude people from her house despite possessing a key. Therefore, the search in that circumstance was not unreasonable and the evidence was admitted.14

In all disputed police searches it is necessary to demonstrate both a subjective and objective expectation of privacy in the subject matter.15 Subjective expectation can be demonstrated by the actions and beliefs of the person under search. If someone locks their property in a public locker they will still subjectively assume that they have a right to privacy despite leaving their possessions behind.16

Objective expectation may be harder to prove. Just because Edwards personally believed his drugs were safe from search at his girlfriend’s home does not mean he was correct. Some objective considerations are as follows:

  • What is the location of the search? Certain locations objectively provide less privacy. For example, in an airport or courthouse it would be impractical to obtain a search warrant for everybody who enters.17
  • Was the informational content of the subject matter in public view? Garbage left on the curb is objectively unlikely to garner an expectation of privacy given that it has been publicly abandoned.18
  • Is the information already in the hands of third parties?19
  • Does the information expose any intimate details of the accused’s lifestyle, or information of a biographic nature?20 While some information, such as a high hydro bill for a marijuana grow-op, may be damning evidence it does not constitute biographical information because it does not expose intimate details of one’s personal life.21 Objectively, there is no need for privacy over such data.

If, in light of all these questions, the accused is able to demonstrate a subjective and objective expectation of privacy then the analysis moves onto the second question, was the search conducted in a reasonable manner?22

What is a Reasonable Police Search?

The basic test to determine whether a search has been conducted in a reasonable manner is three-fold.

  1. Permission to search is provided by an impartial and independent party (a Justice),
  2. Evidence, provided under oath, must satisfy the Justice that there are reasonable grounds to suspect that an offence had been committed,
  3. that evidence must satisfy the Justice that the police have reasonable grounds to believe that evidence of an offence may be recovered.23

The reason why a search should be conducted with an independently provided warrant is that Section 8 is intended to prevent unjustified searches before they happen, not to validate them after the fact.24

Without a warrant there will be a presumption that there are no reasonable grounds for the search to have occurred.25 It is not enough that police merely assume that evidence may be found. When searches are conducted without warrants there is a possibility that the ends will justify the means. The police may not have had enough proof to obtain a warrant, but now that evidence has been found the search can be validated after the fact.26 For example, in R v Evans police approached the Evans’ home and smelt marijuana. They had no justification to suspect that marijuana was present. They never would have received permission to “sniff” the home from a Justice. For that reason the police search of the home based on the odor was unreasonable and excluded at trial.

When no warrant is obtained the standard that police must meet in conducting a search is that of a reasonable suspicion. “Suspicion” is an expectation that the targeted individual is possibly engaged in criminal activity.  A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon probable grounds.  Searches conducted without a warrant, require after the fact scrutiny of the grounds for the “reasonable suspicion” and must be rigorously examined.27

In Conclusion

This is a complicated area of the law and one that is constantly debated before the Supreme Court. Therefore, consultation with legal representation is a must when attempting to argue that a police search has been conducted inappropriately. However, it is possible to summarize the broad strokes of a Section 8 analysis.

If a person has a reasonable expectation of privacy based on both a subjective and objective analysis of the situation, and this privacy is breached, evidence discovered can only be held against the accused if the search was conducted with a warrant or under reasonable suspicion that evidence of a crime would be discovered.

Searches that are neither warranted by a Justice nor reasonable under the circumstances may be excluded at court if allowing it would bring the administration of justice into disrepute. To find out how evidence is excluded and learn more about the legal concept of “disrepute” turn to Unreasonable Search and Seizure Part 2: Excluding Evidence under the Canadian Charter.


Footnotes

  1. Canadian Charter of Rights and Freedoms.
  2. R v Campanella.
  3. R v Fearon.
  4. R v Kang-Brown.
  5. Hunter v Southam Inc, at para 11.
  6. Ibid.
  7. R v Tessling, at para 18.
  8. R v Tessling, at para 20.
  9. Ibid, at para 21.
  10. Ibid, at para 22.
  11. R v Tessling, at para 23.
  12. R v Edward.
  13. Ibid, at para 45.
  14. Ibid.
  15. R v Tessling.
  16. R v Buhay.
  17. R v Campanella.
  18. R v Patrick.
  19. R v Tessling.
  20. Ibid, at para 27.
  21. R v Plant.
  22. R v Edwards, at para 45.
  23. Hunter v Southam Inc, at para 11.
  24. Ibid, at para 27.
  25. Ibid, at para 11.
  26. R v A.M.
  27. R v Kang-Brown, at para 75.