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| Patrick J Ducharme |
Section 8 of the Charter
Section 8 of the Charter provides everyone has the right to be secure against unreasonable search or seizure. The section serves as a limitation on the powers of search and seizure held by the federal or provincial governments. It does not itself confer any powers of search and seizure on these governments. Section 8 provides a broad and general protection against unreasonable search and seizure. Any discussion concerning search and seizure must begin with a thorough consideration of section 8.
There is no general power of detention for investigative purposes, but the police may detain an individual if there are reasonable grounds to suspect in all the circumstances that the person is connected to a particular crime, and, the detention is reasonably necessary on an objective view of the circumstances. The police are entitled to detain persons for investigative purposes, given the totality of circumstances, where the police have objectively discernible facts that give the detaining officer reasonable cause to suspect that the detainee is implicated in the activity under investigation. This is so even if the cause relied upon by the police is later determined by a court to be less than what would constitute evidence of reasonable and probable grounds to believe that the person had, in fact, committed or was committing a crime.
The police are not, however, permitted to detain a person on a justifiable ground unrelated to the purpose of their investigation. Stops pursuant to provincial highway legislation must be for legal reasons, to check the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle.
The Ontario Court of Appeal decided in Simpson that a “hunch” based entirely on intuition gained by experience can not suffice. The court determined that there must be a constellation of objectively discernible facts that give the detaining officer reasonable cause to suspect that the detainee is implicated in the activity under investigation. There are, for example, several provincial highway traffic statutes that authorize police officers, in the lawful execution of their duties, to require a motorist to stop her vehicle and produce a driver’s licence. The provision has been held to be reasonable within the meaning of that term in section 1 of the Charter.
Continued in Part 2: Constitutionality of Search and Seizure.
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.
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