Rights Against Search and Seizure

• < Search and Seizure

General Principles

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

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

– CCRF

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.

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

Analysis
In any alleged violation of the rights under s. 8 of the Charter the Judge must make two inquiries:

1. did the accused have a reasonable expectation of privacy
2. was the search or seizure an unreasonable intrusion on that expectation.

Privacy analysis is from the perspective of a "reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy".

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

The police cannot justify an invasion of privacy ex post facto based on the results of the search.

In general terms, the law should not "unduly hamper" the police in criminal investigations.

Interpretation of Rights
All Charter rights, including those in s. 8, "must be broadly and liberally construed to effect its purpose".

Burden
The "right to challenge the legality of a search and seizure" requires the accused to "first discharg[e] the burden of satisfying the court that his personal constitutional rights have been violated".

Meaning and Purpose of Rights Against Search and Seizure

Privacy is "at the heart of liberty in a modern state" and is part of the essence of democratic government.

The right under s. 8 is broader than the traditional concept of privacy as the "right to be let alone". It is about limiting "state power".

The rights are mean to limit state power in order to foster "underlying values of dignity, integrity and autonomy".

Privacy is essential to "well-being of the individual" and is grounded in their "physical and moral autonomy".

It is "essential for the well-being of the individual" and has a profound significance for the public order."

Privacy is a “protean concept”, meaning that it tends to be highly variable and change.

The purpose of the right under s. 8 is to protect "the citizen's right to a reasonable expectation of privacy" and to "prevent unreasonable intrusions on privacy, not to sort them out from unreasonable intrusions on an ex post facto analysis". It is also “to protect the privacy of individuals from unjustified state intrusion”.

It is for these reasons that the principle of reasonable expectation of privacy is a "normative rather than a descriptive standard". A "normative" standard is one that is "making a value judgement" stating that the "values underlying contemporary Canadian society dictate that the state must respect the personal privacy of individuals unless it is able to constitutionally justify any interference".

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

The Canadian approach to the right of privacy comes from the US jurisprudence beginning with Katz v U.S. 389 US 347 (1967).

The restrictions on government to engage in searches "go to the essence of a democratic state".

The right to privacy must be balanced against society's interests in "safety, security and the suppression of crime".

The words "search" and "seizure" are to be treated disjunctively. It is possible for one to lawful and at the same time the other one unlawful.

Meaning of a "Search"

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

Any "inspection is a search" 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".

The "Place" of Search
The "place" where the search takes place can be identified by determining what category of the zone of privacy are implicated. The "zones" of privacy however are not strictly distinguished.

Residences
Knocking at the door for an investigative purpose is not a search. However, in other circumstances it can be a search.

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

An officer who pushes the apartment door open further in order to view the inside of the house better is a "search" and is not covered as implied licence to knock.

An undercover officer who attends on a property by invitation is not a "search".

Vehicles
Merely peering into a car windows at night using a flash-light while the car in on a public highway is not a search.More generally, it has been accepted that a "police officer may use a flashlight at night to observe activities or objects inside vehicles."

An officer who sticks his head partially into a car to smell for marijuana is conducting a search.

Person
A gun shot residue analysis on a suspect constitutes a search.

Police observations of stains on a shirt visible to the public is not a search.

The taking of an accused's photograph at the time of their arrest at the station appears to not be considered a search.

Other Observations
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. This is distinct from detection with the use of technology, such as a sniffer dog or a FLIR device.

Video surveillance will amount to a search whenever the observations are of activities which are expected to have a reasonable expectation of privacy.

The forensic "fingerprinting" of computer files through calculating a file "hash" value on a device, even where the files are not examined by a person, can still be considered a search.

Undercover Agent
An undercover operator who enters a premises by invitation, express or implied, is not breaching the suspect's expectation of privacy and so is not a "search" within the meaning of s. 8 of the Charter.

Meaning of "Seizure"

A "seizure" in essence is the "taking of a thing from a person by a public authority without that person's consent". An individual who gives something to an officer does not constitute a seizure. Rather it is merely the receipt of a thing. However, where an officer asks that something be forwarded or given to him will amount to a seizure.

It should be remembered that the Charter was intended to promote privacy not property rights. The "enjoyment of property" was specifically rejected from Charter. Seizure cannot apply to a person.

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".

A seizure does not have to be connected to a search.

The line between seizure and "mere finding of evidence" will exist at the point where "it can reasonably be said that the individual ha[s] ceased to have a privacy interest in the subject-matter allegedly seized".

The expropriation of property is not a "seizure".

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

Where the state compels the production of documents, even in a regulatory context, will amount to a seizure.

Consent Seizure
Valid consent in this context is determined based on indicia such as:

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.

Standing

Only an accused person with a reasonable expectation of privacy over a thing seized or a place searched may enforce their rights under s. 8. Simply being the target of an investigation does not qualify you as having standing to challenge the search and seizure, absent a reasonable expectation of privacy.

Where the accused abandons an item that is subject of a search and seizure, such as during a pursuit, there will be no expectation of privacy where in the "totality of circumstances" the accused intended to abandon the item irrevocably.

Denial of Ownership or Identity
Where the accused denies ownership, knowledge or control of the item at issue of the search, the accused may not enforce a Charter right. This will generally apply as well where the accused denies that it is his voice on a wiretap.

Validity of a Search

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.

The third element constrains the actions undertaken by the officer during the search. For example, whether they are required to stop after a certain amount of time or after recovering a certain amount of evidence.

There is effectively a presumption of unreasonableness for all searches and seizures that are warrantless in criminal or quasi-criminal matters.

Purpose of Search

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.

Authorized by Law

Authorization to intrude on zone of privacy can arise out of the common law or statute. Depending on the circumstances certain zones will requires judicial authorization by way of a warrant.

Valid Law

See Constitutional Challenges to Legislation

Party Performing the Search

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.

Agents of the State

A person is an agent of the police where there is a relationship between the parties for a specific purpose and that the purpose would not have been undertaken but for the involvement of the police. Mere cooperation between the parties is not enough.

The absence of evidence of an agreement or instructions to the searching party will weigh against the finding of agency.

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

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

An important question to ask is whether the conduct resulting in the discovery of evidence would have taken place in "the form and manner in which it did, but for the intervention of the state and its agents".

Employees of government agencies, such as social workers, who discover or investigate possible offences are agents of the state. 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.

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

A sheriff's officers executing an eviction order that was valid on its face were state actors for the purpose of s. 8.

Landlords
A landlord entering into an apartment in response to a compliant and then reports the findings to police is not acting as an agent.

Schools
It is usually the case that principals have statutory duties under the provincial education acts to "maintain a safe school environment". This power will necessarily include the "power to seize and search a school-board-issued laptop if the principal believed on reasonable grounds that the hard drive contained compromising photographs of a student".

Hospital Staff
A member of the hospital staff in execution of their duties are not agents of the state. Blood samples taken for medical reasons is not a violation of s. 8 as they are not acting as agents. The applicant must prove that the medical staff was otherwise acting as an agent before an intrusion on privacy can be found.

Security Personnel
A security guard screening people at the entrance of an exhibition is not a state actor even when performing duties in the presence of a peace officer.

See Also

• Seizure of Property