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Section 8 of the Canadian Charter of Rights and Freedoms safeguards your right to be free from any and all unreasonable searches and seizures. Police officers must have a legal right to search before they exercise the power to search your person, home, office, or car. They can't simply act on a whim or mere suspicion. The searches that occur most frequently are those which happen upon arrest, within your home or office, and an increasing number are searches of computer hard drives. The question then arises: When are these searches lawful?
If an arrest is lawful, arresting officers have the authority to execute a search incident to arrest. But it's important to stress that the arrest must be lawful for a subsequent search to be legitimately authorized by law. Officers need a reasonable basis to believe a search is necessary. They need to identify some evidence at the time of arrest that justifies their belief that the search will turn up either relevant evidence or safety hazards, such as drugs or weapons.
A search of your person or car conducted sometime after your arrest might be unlawful. For instance, in Caslake v R, where the accused was charged with drug possession and taken into custody. During custody, the police searched his car to take an inventory of its contents. The court ruled this search as unlawful because it was not performed to discover drugs. They stated a search incident to arrest should be linked to the offence upon which you are arrested or relate to officer safety.
A subsequent search after an arrest must be executed in a reasonable manner. Officers can use as much force as situationally necessary, yet they are forbidden from conducting more invasive forms of searches unless justified.
Under certain circumstances, if an individual is expected to be held in custody and will mix with other individuals also in custody, a strip search might be justified on the grounds that it could uncover contraband and weapons dangerous to the person or other inmates. However, a search incident to arrest does not give police the right to conduct a strip search unless the person is expected to be placed in custody with others, or reasonable grounds exist to believe the person is concealing evidence or contraband. A strip search, requiring you to undress in the presence of a police officer, is quite intrusive. And if a strip search is necessary immediately, officers must take all possible steps to ensure your privacy is maximally protected, for example, by moving you into a secluded area out of public view.
Interestingly, a search incident to arrest does not authorize the police to seize bodily samples. They cannot forcibly collect a DNA saliva swab or a hair sample. The Courts even decided that not even a discarded Kleenex tissue may be seized, if the person is in custody. However the same tissue can be seized and analyzed if discarded by an individual who is not in custody while in a public place. The inference is that a cigarette dropped by a person outside a courthouse might be analyzed for DNA.
The police must not search your home or office without a valid search warrant. And even if you have committed an offence, they can't enter your home to arrest you without a warrant unless they're in "hot pursuit" of a suspect. Your homes, offices, or any place where you live or work your affairs are protected. Police may only enter these premises with a warrant or with the consent of the occupant.
Section 487 of the Criminal Code empowers Justices to issue a search warrant for these private locations. Such warrants can only be granted by a Justice who is convinced, based on sworn information, that relevant evidence is in the building to be searched. Police must provide the court with evidence suggesting the items they're searching for both exist and can be found in your home or office. This rule aims to prevent the police from undertaking what amounts to fishing expeditions, thereby safeguarding your right to privacy.
Further, the search must meet reasonable standards. The police should be conscious of building the nature they're searching for. Say, if your business has sensitive files, the officers must use extra caution, as they would in a home with children.
Protection of your right to privacy in your home or office does not end when the search concludes. If the information used to procure the warrant doesn't establish that relevant evidence was in the building, or if the information was exaggerated, incomplete, or fraudulent, the search warrant may be invalidated.
In some situations, where your expectations for privacy are diminished, a search may be justified on a lower standard. For instance, people crossing borders should be aware of the heightened state interest in national security and might reasonably expect customs officers to search on a suspicion basis.
With any legal issue, only a proficient criminal lawyer can evaluate the potential for challenging an accusation on the grounds that one’s Section 8 Charter right to be free from unreasonable search and seizure was infringed.
