Search and Seizure

A search is commonly understood to be a physical search of a premises.  However, it can also include wiretapping, which permits the police to eavesdrop on phone calls and other private communications.

A seizure can be the collection of an item, such as a weapon, but can also include the collection of an individual’s bodily substances, such as a breath or a blood sample.

Section 8 of the Charter of Rights and Freedoms protects those in Canada against “unreasonable search and seizure.”  This means that the police must follow certain rules when undertaking a search or seizure.  Section 8 rights are often violated in the course of searches related to drug, weapon and fraud investigations.

Generally, a search and seizure requires a warrant.  A warrant can be obtained where the police provide a judge with information capable of establishing reasonable grounds for believing that items related to an indictable offence will be found in the premises to be searched.

It is important to realize that the existence of a search warrant does not automatically render a search reasonable and therefore legal.  There are many ways to challenge the validity of a search warrant.  Firstly, one can challenge the warrant itself.  If the warrant is overbroad—for example, if it permits a search for items not logically connected to the alleged crime—it should be declared invalid.  Secondly, one can challenge the information provided to the police.  If the information is inaccurate or was collected in way that breached the accused’s Charter rights, the warrant should be declared invalid. A warrant also governs the scope of permissible behaviour for investigating officers when they are conducting searches and seizing evidence. If it is discovered that the investigating officers wandered outside the parameters outlined in the warrant, some of the evidence obtained may be able to be excluded from trial.

A warrantless search and seizure can be permitted where:

• The grounds for a warrant exist but “exigent circumstances” make obtaining a warrant impracticable. Generally “exigent circumstances” exist where there is an imminent danger that the evidence being sought will be lost, hidden or destroyed if the search is delayed.
• The search is part of an investigation and the officers believe on reasonable and probable grounds that their safety or the safety of others is at risk.
• The search is performed incidental to a lawful arrest.

Warrantless searches and seizures can be challenged on many grounds.  It is often possible to argue that:

• there were no “exigent circumstances,” and thus, the police should have obtained a warrant;
• there were no grounds to believe that there was a risk to anyone’s safety; or
• the police had no grounds to justify the arrest that preceded the search and thus the arrest and subsequent search were unlawful.

One common scenario is that a police officer pulls someone over for a Highway Traffic Act violation, such as speeding, and then decides to search the trunk of the vehicle.  This type of search is only permitted if the police officer has reasonable grounds to believe that the vehicle contains something related to a crime.  If no reasonable grounds exist, the police are not permitted to engage in a “fishing expedition” designed to uncover evidence of criminal activity.

Even where there is a valid warrant in place or the grounds for a warrantless search exist, the search can be rendered unreasonable if it is carried out in an improper manner.

For example, except in unusual circumstances, the police must follow the “knock and announce” rule, which requires them to knock on the door or ring the doorbell, identify themselves as police officers and state the reason for entering the premises.  If the police do not follow these steps, it can be argued that the subsequent search was unreasonable and that any evidence obtained should be inadmissible at trial.

Moreover, if there is a warrant, the police must conduct the search within the boundaries set out in the warrant.  If they execute the search outside the specified time or search an area not set out in the warrant, it can be argued that the search was unreasonable.

If a search and seizure is determined unreasonable, DUVADIE Law can argue that any evidence gathered as a result should not be admitted at trial.  Often when key evidence is declared inadmissible, the Crown attorney will drop the charges as it will not have sufficient evidence to prove guilt beyond a reasonable doubt.  Even if the trial proceeds, the exclusion of important evidence will make it difficult for the Crown to prove its case.

If you believe you have been subjected to an illegal search or seizure, please call DUVADIE Law at 613-422-1155 or Toll-Free at 1-855-422-1155 to set up your free 30 minute consultation. 

Page last updated Sep 21, 2018 @ 22:56