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In Canada, all powers to search and seize are now subject to section 8 of the Canadian Charter of Rights and Freedoms, which articulates the right not to be unreasonably searched or have one’s possessions seized.
As a result, sec. 8 requires that an assessment be made in each case of whether the public’s interest in being left alone by the government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals: most notably, those of law enforcement.
In the case of Hunter v. Southam, the Supreme Court of Canada held that, save a few exceptions, and as a means of preventing unjustified searches, the requirement of prior authorization, such as a valid warrant, is a precondition for a valid search or seizure. The logical extension of this requirement amounts in principle to the rule that warrantless searches that don’t fall into one or more of the exceptions are unreasonable.
This means that in most cases, the police will need a Judge or a Justice of the Peace to issue a search warrant before they can search any place or seize any property.
Not all private property, however, commands the same level of respect for privacy from a sec. 8 perspective. By that, it means that the courts will determine the individual’s level of expectation of privacy based on the place that is searched or the property that is seized.
The higher the expectation of privacy, the more rigorously the courts will enforce the rule of prior authorization. Generally speaking, an individual will have a greater expectation of privacy in their home than they will in their car, a greater expectation of privacy in their car than in their work locker, etc… It is without a doubt, however, that individuals do have a reasonable expectation of privacy with regard to their own car, and the contents of therein.
However, the same expectation of privacy is not attributable to persons who are not the vehicle’s owner and who are passengers within it. As the Ontario Court of Appeal held in R v Alkins, the already lesser expectation of privacy in a car is further reduced when the vehicle belongs to someone other than you.
To illustrate this point, consider for a moment that you are a passenger in a vehicle which is stopped by the police for speeding. After briefly speaking with the driver, the officer believes that a weak scent of marijuana is coming from within the car. Ordinarily, that would not amount to sufficient grounds to search the vehicle but say for the sake of example that the officer conducts the search anyway and discovers an ounce of marijuana under the passenger’s seat, where you happen to be sitting.
As a result, both you and the driver are arrested for constructive possession of a controlled substance. At his trial, the driver’s lawyer brought an application to exclude the marijuana because it was obtained through an unlawful search of his vehicle, and succeeded.
At your trial, your lawyer tries to do the same, but the judge dismisses your application. Why? The reason is because you are deemed to have a lesser, or no expectation of privacy in the car of another, and thus, cannot rely on the sec. 8 right not to be unreasonably searched.
Now say that instead of finding the marijuana under the passenger’s seat, the officer searched through a briefcase that was located in the trunk of the car. After asking who it belonged to, you advised the officer that it was yours and that you were not consenting to a search of its contents.
Despite your protests, the officer goes ahead and searches it anyway, discovering the marijuana within it and placing both you and the driver under arrest. The situation has now fundamentally changed from when the discovery of marijuana was found under the passenger’s seat. This is because you are deemed to have an expectation of privacy in the contents of a briefcase, or an opaque bag of any kind.
In R v. Mohamad, the Ontario Court of Appeal held that the owners of briefcases generally have a reasonable expectation of privacy in the contents of their briefcases. The Court stated that briefcases can often have highly confidential personal and business information and, in a practical sense, can serve as possible portable offices or “keep-safes” for their owners.
As a result, when your lawyer files an application to exclude the marijuana at your trial, you will be in a much stronger position and may be successful in having the evidence excluded. The word “may” is important in this context, because although the evidence was obtained in an unlawful manner, the Court will still need to balance your interest from being unlawfully searched against society’s interest in prosecuting crime on the merits.
At the start, I mentioned that there existed a few exceptions to the rule requiring prior authorization for searches and seizures. One of the most common exceptions to the rule is what is known as the “search incident to arrest” power.
A search incident to arrest occurs when the police search your person, objects on your person, your car, and/or the surrounding area as a result of your arrest for an alleged crime. For example, if the police see you engage in a drug transaction from within your motor vehicle, they will have the right to search you and your vehicle for any drugs. Any other unlawful objects, materials or supportive evidence that is found in the process of the search may also be seized.
However, police need to be careful how they use their power to search incidents to arrest. A prerequisite to a search incident to arrest is that the arrest itself must be lawful. This means that if the police do not have reasonable and probable grounds to make the arrest in the first place, then the arrest is unlawful.
As such, any incriminating evidence that they find on you, or in your car, may be excluded at your trial. Again, the word “may” is important in this context, because although the evidence was obtained in an unlawful manner, the Court will still need to balance your interest from being unlawfully searched against society’s interest in prosecuting crime on the merits.
Moreover, even if the arrest itself is lawful, the search which the police conduct subsequent to your arrest must be connected to the crime you are being arrested for. For example, if you are arrested for driving while impaired, generally speaking, a search of your vehicle would not be connected with what you are being charged with. What reason would the police have to search your car? The crime of driving while impaired has to do with you being impaired by drugs or alcohol while operating a motor vehicle.
A search of your car is not required to prove the elements of the crime and does little to further the police’s investigation. Conversely, in the drug-transaction example above, the search of your car is logically connected to your arrest. Since the police saw you sell drugs out of your car, it is not illogical to believe that there may be more drugs within the car. What constitutes a logical connection between the arrest and the search will be determined by the specific context of each individual case.
Other, less known, exceptions to the rule requiring prior authorization are contained within the Criminal Code itself. The most notable of those exceptions, for present purposes, is located in sec. 487.11, which states the following:
A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant
In the case of R v. Grant, the Supreme Court held that exigent circumstances exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed. Generally speaking, whether exigent circumstances exist on the occasion in question will be a question of law for the judge to decide.
The “exigent circumstances” exception is one that is rarely used, since in most cases the police will gain control of the location that they intend to search, and then apply for a search warrant to permit them to enter if they haven’t already applied for one.
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