Section 8 of the Canadian Charter of Rights and Freedoms states:
Everyone has the right to be secure against unreasonable search or seizure.
This section protects the reasonable expectation of privacy. Indeed, the scope of protection must be assessed in light of the right to be free from interference and the right of the state to intrude on the privacy of the individual.
This section protects against unreasonable search or seizure. A search or seizure authorized by statute or common law will therefore not be unreasonable. The authorities may, without the consent of the individual, after obtaining judicial authorization, conduct a search or seizure.
The individual must show that they have a reasonable, objectively justifiable expectation of privacy. To meet this criterion, the following must be considered:
- The purpose of the search or seizure;
- The individual’s interest in the object;
- The individual’s expectation of privacy in the subject matter and whether that expectation was reasonable.
The purpose of the search
The human body is inviolable. However, under the statute or common law, the police may search or take body samples in some cases. A typical example is a search incident to arrest, or the taking of breath samples for analysis using a breathalyzer device to detect blood alcohol levels.
A person’s home is also inviolable and sacred. In the absence of the person’s consent or a prior warrant, the police cannot, in principle, enter a house for the purpose of searching or seizing it. The dwelling house is a place where the expectation of privacy is very high.
The accused may also have an expectation of privacy in land owned by the accused. The same is true of a hotel room that the individual rents, or their place of work, as well as a locker in which the individual stores their belongings.
Computers and cell phones also benefit from the protection afforded by section 8 of the Charter.
In addition, the supervision of an individual remains possible and, depending on the circumstances, a warrant should in some cases be obtained before the person can begin to be monitored. While a warrant is generally required in order to conduct a search or seizure, there are common law rules that permit a warrantless search or seizure.
The Plain View Theory
It is permissible for a police officer who is lawfully in a position to seize any apparent or inadvertently discovered evidence, if four conditions are met:
- The police officer’s presence at the scene is lawful (by statute or common law);
- Inadvertent discovery of the evidence;
- The discovery made with the normal (ordinary) use of one’s senses;
- The criminal nature of the evidence must be apparent from the evidence.
The Plain Smell Theory
Even if this theory is similar to plain view, we must be careful not to make an association between these two concepts. Indeed, if the plain view is easily conceivable, the plain smell is much more difficult to pin down. Here, the policeman’s senses are appealed.
The use of this theory is therefore very subjective, especially since smells are very volatile and can come from any place. For example, the presence of a burning smell of marijuana alone cannot give the police reasonable grounds to believe that a criminal offence has been or is about to be committed.
It should be noted that these theories do not allow you to search, but rather to seize objects. For example, if the officer smells the presence of a marijuana odour coming from a room while lawfully in a house, he is not permitted to search the house for the source of the smell without first obtaining a warrant.
Search incident to arrest
Such a search depends on the lawfulness of the arrest. This is a common law power conferred on the police .
The purpose of the search must be to ensure the safety of the police and the suspect themselves, to prevent the destruction of evidence or the discovery of evidence. The purpose of the search must be valid and related to the arrest.
In the event of an arrest for certain offences, a cursory search of the suspect’s cell phone will be permitted if it meets the purpose of the search incident to arrest. The suspect’s vehicle may, under certain conditions, also be subject to a search incident to arrest.
Search incident to investigative detention
This is not an automatic search. To conduct such a search, the police officer must have reasonable grounds to believe that their safety or the safety of the public is at risk. In addition, such a search must not be conducted in an unreasonable manner.
In determining the lawfulness of a search incident to investigative detention, all the circumstances surrounding such detention must be considered. Moreover, the only reason for such a search is to ensure the safety of police officers and the public.
In sum, section 8 protects the individual from the coercive power of the state. Thus, if a search or seizure is authorized by law and the law itself is not contrary to constitutional principles, such a search or seizure will not be unreasonable. In addition, the search or seizure must be reasonable in the circumstances.
Each case must be analyzed individually to determine whether or not there has been a violation of the Charter. If you have been criminally charged and believe that your Charter rights have been violated, please do not hesitate to contact us at any time.