3. Search and Seizure

Search and Seizure Summary #

Preliminary points: #

Section 8 of the Charter states:

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

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

A person’s rights under section 8 are only engaged where the search by a state agent intrudes upon an REP. (Hunter) (See below for more on REP.)

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.)

Where a state agent carries out a search impinging upon an REP, the court asks whether the search was reasonable. The Supreme Court in Collins held that a search will be reasonable under s. 8 if:

(i) it is authorized by law,

(ii) the law is reasonable, and

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

In Hunter, the Supreme Court held a reasonable search is one conducted pursuant to 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).1

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.

A warrantless search may be reasonable if the Crown can demonstrate, on a balance of probabilities, that it was carried out pursuant to other law, the law is reasonable, and the search is carried out in a reasonable manner. (Collins)

Other law authorizing a search includes:

-statutory or common law authority on exigent circumstances;

-other statutory provisions (e.g., allowing for searches without warrants and/or on lesser grounds in regulatory contexts); or

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

To assess whether a (new) law authorizing a search is ‘reasonable’, the court asks whether it 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).

The third part of Collins asks whether the practical, physical manner in which the search was carried out was reasonable.2

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:

-search incident to arrest (without additional grounds);

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

-a sniffer-dog search in a public space of odors emanating from a sealed item (on reasonable suspicion) (Kang-Brown, A.M.; Mackenzie);3

*-*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).4

-statutory provisions allow for warrantless searches in exigent circumstances: 487.11 of the Criminal Code and 11(7) of the CDSA: both provisions state that a PO can carry out 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.

When do we have a REP? #

The SCC has set out several tests for REP, among them the following three (the first being the most general and authoritative).

The test set out in Spencer (2014) and Marakah (2017):

Whether a person has an REP in a thing/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?5

A second test, relating primarily to “informational” forms of privacy, involves an assessment of whether the thing being searched reveals a “biographical core of personal information,” or “information which tends to reveal intimate details of the lifestyle and personal choices of the individual.” (Plant)

A third test, set out in Wong holds that whether we have an REP in a place / 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.” (Wong) The question is thus normative rather than descriptive.

An item or place used for an illicit purpose does not preclude finding an REP in it. (Wong)6

Search analysis in a conventional criminal case: #

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

i. Did the accused have an REP in the place or thing searched/seized?

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

[Onus on the accused on a balance of probabilities.]

ii. Was the search reasonable?

Pursuant to Collins, a search under s 8 is reasonable if:

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); and

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

[Onus on the Crown on all 3 points here on a balance of probabilities.]

Search pursuant to a warrant #

A search conducted with a warrant will be one “authorized by law” only 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?7

If a home (or any other space) were searched without a warrant, the search would be prima facie unreasonable and might still be reasonable (applying the test in Collins).

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

a. a search power set out in a statute or at common law;8

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

c. valid consent.9

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. 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. ↩︎

  2. 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. ↩︎

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

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

  5. 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). ↩︎

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

  7. 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)? ↩︎

  8. 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? ↩︎

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

© Robert Diab, TRU Law, 2022