2. Search and Seizure

Search and Seizure Summary #

Preliminary points: #

Content and purpose of section 8 #

Section 8 of the Charter states:

“[e]veryone has the right to be secure against unreasonable search or seizure.”

In Hunter v Southam Inc, the Supreme Court held that the purpose of section 8 is to protect a person’s right to a “reasonable expectation of privacy” (REP).

When is section 8 engaged? #

A person’s rights under section 8 are only engaged when:

(a) a state agent conducts

(b) what amounts to a ‘search’ or ‘seizure’ of

(c) something in which a person has a reasonable expectation of privacy.

Who is a state agent? #

Section 32 of the Charter limits the application of the rights it protects to the actions of government and its agents. (Dolphin Delivery; Vriend)

In addition to police, section 8 applies to actors that are clearly part of government or entities over which government exerts substantial control (city bylaw officers, investigators for regulatory agencies, public transit security officers, or employees at public hospitals).

A person acts as an agent for police (or another state actor) where ‘but for’ the involvement or direction of the police or state actor they would not have done what they did. (Broyles)

What is a search or seizure? #

A ‘search’ under section 8 is anything done as an ‘investigative technique’ or with an investigative purpose that intrudes upon or diminishes a reasonable expectation of privacy. (Evans)

A ‘seizure’ under section 8 is the “taking of a thing from a person by a public authority without that person’s consent.” (Dyment) (The thing taken must be something over which the person has an REP: Dyment, Stillman, Patrick.)

When do we have an REP? #

The SCC in Wong held that whether we have an REP in a place or thing depends in a general sense on “whether, by the standards of privacy that persons can expect to enjoy in a free and democratic society, the agents of the state were bound to conform to the requirements of the Charter when effecting the intrusion in question.” In Tessling, the Court held that “[e]xpectation of privacy is a normative rather than a descriptive standard.”

For this reason, an item or place used for an illicit purpose does not preclude finding an REP in it. (Wong)1

The court will find an REP in a thing being searched where it touches upon a “biographical core of personal information,” or “information which tends to reveal intimate details of the lifestyle and personal choices of the individual.” (Plant)

More broadly, in Spencer (2014) and Marakah (2017), the SCC held that whether a person has an REP in a thing or place depends on the “totality of the circumstances,” to be assessed under four “lines of inquiry”:

What was the subject matter of the alleged search? [a space, object, conversation, device]

Did the claimant have a direct interest in the subject matter? [ownership, direct involvement]

Did the claimant have a subjective expectation of privacy in the subject matter?

If so, was the claimant’s subjective expectation of privacy objectively reasonable?2

A lack of control over a thing or space is does not preclude a court from finding that a person’s expectation of privacy in the thing against the state was objectively reasonable. (Cole, Reeves, Marakah)

A person who sends a text or an email may, depending on the facts, retain a reasonable privacy interest in the message on the recipient’s device. (Marakah)

A person who co-owns or shares a computer cannot waive the other person’s privacy interest by consenting to its search or seizure. (Cole, Reeves)

Depending on the facts, a person can have a privacy interest in a residence they do not own or rent, or in a car in which they are a passenger. (Edwards, Belnavis, Le)

Assuming the Crown’s theory to establish REP #

In R v Jones (2017), the Supreme Court held that “an accused mounting a s. 8 claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire.”

For example, if the Crown seeks to tender into evidence a gun seized from a bedroom in a home with an unknown occupant, on the theory that the accused occupied the room and possessed the gun, she need not establish these facts in the course of a challenge to the search or seizure under 8. She can ask the court to assume, for the purpose of the Charter challenge, that the room and the gun belonged to her.3

When is a search or seizure reasonable? #

If a state agent carries out what amounts to a search or seizure impinging upon an REP, the court then asks whether the search was reasonable.

The Supreme Court in Collins held that a search will be reasonable under s. 8 if the Crown can establish on a balance of probabilities that:

(i) it is authorized by law,

(ii) the law is reasonable, and

(iii) the search is carried out in a reasonable manner.

1. Authorized by Law #

A search or seizure may be authorized by a wide variety of possible law, including:

-a statutory provision providing for a warrant (typically on probable grounds);

-a statutory provision providing for a warrantless search or seizure, or one on lesser grounds;

-statutory or common law authority on exigent circumstances;

-other common law authority (e.g., ancillary police powers, sniffer dog searches, valid consent.)

(It matters not which law the officer or state agent had in mind when they acted. When a court assesses a search after the fact, it matters only that there is a law that authorizes what they did. The Crown can point to as many laws as they wish, as long as one of them authorizes what police did.)

2. The Law is Reasonable #

In Hunter, the Supreme Court held that a law authorizing a search in the context of a criminal investigation will be reasonable where it requires a warrant (or prior authorization), issued by an independent party acting judicially, on the standard of reasonable and probable grounds (i.e., reasonable grounds to believe an offence has been committed and evidence is likely to be found in the place to be searched).4

The Court in Hunter also held that a warrantless search is prima facie unreasonable, but it may still be reasonable under section 8 in some circumstances.

To assess whether a (new) law authorizing a search is ‘reasonable’, a court must ask whether the law at issue strikes an appropriate balance between the state interest in search in that context and the privacy interest at issue. (Hunter)

Dickson J indicated in Hunter that in a context in which the state has a heightened interest in search and a person’s EP is relatively low and the form of search authorized is not highly invasive, it may be reasonable to depart from the 3 requirements in Hunter—and to allow, for example, for a warrantless search on a standard lower than RPG.

Conversely, where the EP is extremely high, as in a strip search, section 8 may require a standard higher than RPG to believe that evidence will be found (e.g., for strip searches, the additional belief that the search is necessary for safety or to preserve evidence from imminent loss: Golden).

Notable exceptions to the Hunter requirements

The SCC has recognized as reasonable various departures from the Hunter standards—in light of a lower privacy interest or a greater state interest in the context, or both: including the “ancillary police power” at common law to carry out a warrantless search:

-incident to arrest (without additional grounds);

-incident to investigative detention (on reasonable suspicion of safety concerns),

-using sniffer-dogs in a public space to sniff odours emanating from a sealed item (on reasonable suspicion) (Kang-Brown, A.M.; Mackenzie);5

-a ‘safety search’ (of a residence, a car) where police have reasonable and probable grounds to believe there is an imminent threat to public or police safety and the search is necessary to eliminate the threat (MacDonald).6

There are also statutory provisions on exigent circumstances: 487.11 of the Criminal Code and 11(7) of the CDSA allowing police to conduct a warrantless search if the conditions for obtaining a warrant under 487(1) or 11(1) exist but due to exigent circumstances it is not practicable to obtain a warrant.

The SCC in Grant (1993), considering 11(7), held that: “Exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed.” In Paterson (2017), the SCC added that exigent circs in 11(7) “denotes not merely convenience… but rather urgency” to act to preserve evidence or for officer or public safety.

Some forms of search or seizure without a warrant or without probable grounds have been held reasonable in the regulatory context.7

3. Search Carried Out in a Reasonable Manner #

The third part of Collins asks whether the practical, physical manner in which the search was carried out was reasonable.8

Examples of searches of a person carried out in an unreasonable manner include the facts in Collins (choke-hold) and Golden (unnecessary strip search in the field).

Hard entry with a warrant

In Cornell the Court affirmed a long-standing rule that except in exigent circumstances, police officers executing a warrant must make an announcement before forcing entry into a dwelling house. They should give notice of their presence by knocking or ringing the doorbell, identify themselves as law enforcement, and state their purpose by giving “a lawful reason for entry”.

When police depart from these rules, the Crown bears the onus of establishing police had “reasonable grounds to be concerned about the possibility of harm to themselves or occupants, or about the destruction of evidence.” (Cornell)

Appendix 1: Common searches authorized by law #

(i) Search Incident to Arrest #

No additional grounds

At common law, when police carry out a lawful arrest, they also have authority to carry out a limited search incident to arrest without needing separate and additional grounds. (Cloutier, Caslake, Fearon)

Police may conduct a search incident to arrest before the detainee has a chance to speak to a lawyer. (Debot)

Valid criminal justice objective

The Court in Cloutier and Caslake held that a search incident to arrest must be carried out for a “valid objective in pursuit of the ends of criminal justice”, such as:

  1. the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape;
  2. the discovery evidence against the accused;
  3. the preservation of evidence from destruction.

A search incident to arrest may not be conducted to intimidate or be carried out in an abusive manner. (Cloutier)

Time and distance

Search of things seized upon arrest may also be carried out later in time, or at a distance from the place of the arrest, if the search is carried out for a valid criminal justice purpose connected to the offence for which the person was arrested and there is a reasonable explanation for the delay. (Caslake)

Truly incidental

Where there is an issue as to whether a search was truly incidental to arrest (whether it was conducted for a criminal justice objective connected to the offence for which the person was arrested), the court will apply a twofold test:

(a) did the officer subjectively conduct the search for a an objective connected to the reason for the arrest; and

(b) was this objectively reasonable in the circumstances? (Caslake)

For example, in Caslake, the car was searched not to advance a legitimate criminal justice objective, but merely as part of a police policy to ensure the safekeeping of goods seized. The officer thus lacked a subjective intent tied to the reason for the arrest. But if he did act with this intention, it would have been objectively reasonable, given the clear connection between the reason for the arrest (PPT) and the possibility that drugs might be found in the car. Conversely, if a person were arrested for shoplifting cigarettes and the officer decided to conduct a search of the person’s bag because the officer subjectively believed it might contain drugs (acting on the notion that “the person looked to me like a drug dealer”), the officer’s purpose for the search would not be objectively reasonable since it would not advance a criminal justice objective connected to the reason for the arrest.

(Note that in practical terms, this two-part test is relevant only where an accused raises an issue with whether a search was truly incidental to an arrest – and thus it does not arise in every case involving a search incident to arrest.)

– Scope of SITA - bags, cars, area within home #

SITA may entail a brief pat down of clothing (but not the removal of clothing) and the search of pockets, bags, and “immediate surroundings” (Cloutier). The latter can include the inside of a car in which (or close to which) a person is arrested (Caslake).

In Stairs, the SCC recognized a power to search on arrest in a home the area “within the arrested person’s physical control at the time of the arrest” on no additional grounds. Police may also search the area “outside the arrested person’s physical control at the time of the arrest” but “sufficiently proximate to the arrest” where police have “reason to suspect that the search will further the objective of police and public safety, including the safety of the accused.”

– Search of phone or electronic device on arrest #

In Fearon, the Supreme Court held that police may search a cell-phone or electronic device incident to arrest (without a warrant) on four conditions:

i. the arrest is lawful;

ii. the search is ‘truly incidental to the arrest’, meaning that it is carried out promptly and in order to advance one or more of the following law enforcement purposes: to protect the police, the accused, or the public; to preserve evidence; or to discover evidence—but a cellphone search on arrest for this third purpose is only justified “if the investigation will be stymied or significantly hampered absent the ability to promptly conduct the search” [para 80];

iii. the nature and extent of the search is tailored to the law enforcement purpose at issue (which in practice will generally mean “recently sent or drafted emails, texts, photos and the call log” but may reasonably include more, depending on the circumstances; and

iv. the police take detailed notes of what they examined on the device and how.

– Strip search incident to arrest: #

Police are authorized to carry out a strip search following an arrest only where they have (in addition to the grounds for the arrest itself) “reasonable and probable grounds to believe it is necessary to carry out a strip search in the circumstances of the arrest” for (a) safety or (b) to prevent evidence from being destroyed. (Golden)

A reasonable strip search is one conducted at the police station in accordance with the guidelines set out in R v Golden, unless there are exigent circumstances.

Police may carry out a strip search in the field (i.e., at the scene of the arrest) only where they can establish that, in addition to having grounds for arrest and grounds for a strip search (described above), they have further reasonable grounds to believe that exigent circumstances make it necessary to carry out the search at that time and place for safety or to prevent the loss of evidence. (Golden)

(ii) Search incident to Investigative Detention: #

At common law, police have a power to search incident to investigative detention, but it does not arise automatically upon a lawful investigative detention. Police must have separate or additional reasonable grounds to suspect that “officer safety, or the safety of others, is at risk.” (Mann)

This must be based on more than a mere hunch or a ‘personal intuition’ about safety (i.e., police must be able to point to evidence supporting their belief as reasonable). (Mann)

The scope of the search may extend no further than what is necessary to address concerns about safety. (Grant)

Appendix 2: Search analysis in a conventional criminal case: #

When assessing the validity of a search, courts apply the following framework:

i. Did the police seize or search something in which the accused had an REP?

(Section 8 only protects a place or thing over which we have an REP: Hunter)

[Onus on the accused to establish they had an REP on a balance of probabilities.]

ii. Was the search reasonable?

Pursuant to Collins, a search under s 8 is reasonable if the Crown establishes on a balance of probabilities that:

i. it was authorized by law

ii. the law is reasonable (in the sense of striking an appropriate balance between the state’s interest in search in this context and the privacy interest at stake) [this is typically assumed, having been decided in an earlier case]; and

iii. the search was carried out in a reasonable manner.

Search pursuant to a warrant #

A search conducted with a warrant will be one “authorized by law” if the warrant was validly issued (i.e., in conformity with the requirements of the statutory provision) and the search conformed to the scope of the warrant?9

Part of this inquiry may involve arguing that the ‘Information to Obtain’ the warrant (i.e., the affidavit sworn by the officer setting out facts of the case) did not meet the (typical) standard of reasonable and probable grounds to believe an offence has been committed and evidence of it is likely to be found in the place to be searched (e.g., s 487 of the Code).10

(If the search was not lawful in relation to the warrant provision at issue, the Crown might still seek to establish it was authorized by some other law.)

A warrantless search might be ‘authorized by law’ under:

a. a search power set out in a statute or at common law;11

b. exigent circumstances [Code 487.11, 529.3, etc.]; or

c. valid consent.12

If there was no authority for the search, or if the search does not conform to any authority, the search was unreasonable and violates section 8.

If there was other authority for the search and the search conforms with it (and the law / authority in question is reasonable: Collins 2), the court would then ask whether the search was carried out in a reasonable manner? (Collins 3)

If it was, the search was reasonable and does not violate section 8; if not, the search was unreasonable and violates section 8.

(Where section 8 has been breached, the court then moves on to the question of exclusion under section 24(2) of the Charter – but do this on an exam only if asked!)

  1. See doc titled “Summary of Reasonable Expectation of Privacy” (on course webpage) for chart setting out scenarios in which courts have addressed REP. ↩︎

  2. A negative answer to any one of the four lines of inquiry would result in a finding of no REP. (see, e.g., the opinion of Brown, Abella, and Gascon JJ in R v Mills, SCC 2019). ↩︎

  3. The SCC in Jones (2017) held that she may proceed to argue at trial that the Crown has not proved beyond a reasonable doubt the room or gun were hers, but counsel would be “ethically barred” from arguing that the room or gun belonged to someone else. ↩︎

  4. Section 487 of the Criminal Code and section 11 of the Controlled Drugs and Substances Act set out provisions for authorizing a warrant in criminal cases, and these have been held to conform to the Hunter requirements. On the meaning of ‘reasonable grounds to believe’, see the Note on Standards at the end of the Arrest and Detention Summary. ↩︎

  5. Where police may use sniffer-dogs is to be determined case by case: MacKenzie. ↩︎

  6. A distinct search power not premised on detention or arrest. ↩︎

  7. See, e.g Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 SCR 425 (upholding a law allowing investigators of competition offences to demand the disclosure of documents without a warrant or specific grounds) and Comité paritaire de l’industrie de la chemise v Potash, [1994] 2 SCR 406 (upholding powers under a Quebec labour and employment statute to enter a workplace without a warrant and examine documents relating to payroll). ↩︎

  8. Examples of authorized searches carried out unreasonably include a strip search of a woman in the middle of a busy restaurant by three male officers; a case where officers have a warrant to search a residence and use a “hard” or “dynamic” entry method rather than knocking, not because they have safety concerns but because of a blanket policy by the policy force in question (see, eg, R v Cornell); and the case of Collins itself, where the officer had grounds for the search of the accused but lunged at the accused, applying excessive force. ↩︎

  9. Was the warrant issued on valid grounds (RPG to believe an offence was committed and evidence was likely to be found)? And did the search exceed the lawful scope of the warrant or other statutory powers relating to the execution of the warrant (e.g., Code, s. 487)? ↩︎

  10. See, e.g., R v Morelli, 2010 SCC 8. ↩︎

  11. If there is other authority, a court would ask whether the search fell within the scope of that authority—e.g., if it required reasonable suspicion, did the officer in this case have reasonable suspicion, or was it mere suspicion? ↩︎

  12. If consent was given, what was the scope of the consent? Was it informed and unequivocal consent? ↩︎

© Robert Diab 2023