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| Patrick Ducharme |
Continued from Part 1: Search and Seizure.
Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. A search is “reasonable” if it is authorized by law, if the law authorizing is itself reasonable, and if the search is conducted in a reasonable manner. In other words, a search or seizure must be authorized by a specific statutory or common-law rule, and then, be carried out within the requirements that the law provides. The investigating officers are required to operate on reasonable grounds that import the concept of a credibly based probability.
Constitutionality of a search and seizure, or of a statute authorizing the search or seizure, seeks to determine the reasonableness of the search and its impact on the subject of the search or seizure.
Section 8 guarantees a broad and general right to be secure from unreasonable search and seizure beyond mere protection of property. It protects an individual’s reasonable expectations of privacy. The competing interests are the public’s interest in being left alone by government and the government’s interest in law enforcement. Section 8 attempts to protect individuals from unjustified state intrusions upon their privacy and provides a means to prevent unjustified searches even before they occur.
This is generally accomplished by a system of prior authorization, not one of subsequent validation. Although section 8 makes no reference to prior judicial authorization or the obtaining of a search warrant, our courts have determined at least, where it is feasible to obtain prior authorization, such authorization is a pre-condition for a valid search and seizure. There is a presumption of unreasonableness where the search has taken place without a warrant that the party seeking to justify the warrantless search must rebut.
Consequently, our courts have read into the requirements of section 8, the need for two things: (1) reasonable grounds, and (2) a search warrant, when obtaining a search warrant is feasible.3 While the accused bears the burden of persuading the court that her Charter rights or freedoms have been infringed or denied, once the accused has demonstrated that a search was a warrantless search; the prosecutor has the burden of showing that the search was, on a balance of probabilities, reasonable.
A search does not relate only to physical intrusions upon a person or property. A search includes any invasion of a person’s reasonable expectation of privacy. Any person who has his privacy invaded has the right or “standing” to apply for a remedy pursuant to an alleged Charter breach. The court determines “standing” to make a complaint concerning a Charter infringement, by determining whether the person had a reasonable expectation of privacy in the totality of the circumstances existing at the time of the search or seizure.
A search without a search warrant is presumptively unreasonable. In order to qualify as proper prior judicial authorization, the search warrant must be issued by an independent Justice or Judge issuing the search warrant only after the Justice or Judge is satisfied, on sworn evidence, that there are reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place to be searched.
Here are most of the relevant provisions of law relating to search and seizure:
Charter:
s.8: Everyone has the right to be secure against unreasonable search or seizure.
s. 9: Everyone has the right not to be arbitrarily detained or imprisoned
s. 10: Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefore;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
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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