 |
| Patrick Ducharme |
Continued from part 1.
The law in Canada is that warrantless searches are prima facie unreasonable under section 8 of the Charter (Hunter). Where a search is carried out without prior authorization in the form of a warrant, the burden is on the party seeking to justify the warrantless search to prove that it was not unreasonable. Searches of the person incident to arrest are an established exception to the general rule that warrantless searches are prima facie unreasonable.
In considering the constitutionality of strip searches carried out as ‘incident to arrest’, it is still important to bear in mind that warrantless searches are the exception and not the norm in Canadian law. While characterized as an exception to the normal rule that a search warrant is required for a lawful search, warrantless personal searches incident to arrest are an exception the importance of which should not be underestimated. The practical reality is that warrantless searches of people incident to arrest constitute many of the searches conducted by police.
Strip searches are only constitutionally valid at common law where they are conducted as incidental to a lawful arrest for the purpose of:
a. discovering weapons in the detainee’s possession;
b. to ensure the safety of the police, the detainee or other persons; or
c. for the purpose of discovering evidence related to the reason for the arrest, to preserve it and prevent its disposal by the detainee.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
Subscribe to Patrick Ducharme’s Youtube Channel