TRU Law | Prof. Diab | Fall 2019
Search and Seizure Summary
Preliminary points:
Section 8 of the Charter states that “[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. (Evans, SCC 1996)
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 is reasonable under s. 8 if:
(i)
(ii)
(iii)
it is authorized by law,
the law is reasonable, and
the search is carried out in a reasonable manner.
Requirements of a ‘reasonable’ search:
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.
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.
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TRU Law | Prof. Diab | Fall 2019
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 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 (automatic) or
incident to investigative detention (on reasonable suspicion of safety concerns), or to carry out a
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; 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.
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TRU Law | Prof. Diab | Fall 2019
sniffer-dog search in a public space of odors emanating from a sealed item (on reasonable suspicion)
(Kang-Brown, A.M.; Mackenzie). Where police may use sniffer-dogs is to be determined case by
case: MacKenzie.
-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.
-section 529.3 of the Criminal Code allows for a warrantless search of a dwelling house where
conditions for a warrant exist and police have a reasonable suspicion of imminent bodily harm or
death, or a reasonable belief in evidence relating to an indicatable offence and entry is necessary to
prevent imminent loss or destruction of evidence.
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?
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)
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TRU Law | Prof. Diab | Fall 2019
In a broader sense, 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)3
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 it is:
i. 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. Was the search carried out in a reasonable manner.
[Onus on the Crown on all 3 points here on a balance of probabilities.]
The case of a 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?4
3
See doc titled “Summary of Reasonable Expectation of Privacy” (on Moodle) for chart setting out scenarios in which
courts have addressed REP.
4
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)?
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TRU Law | Prof. Diab | Fall 2019
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).
To be clear, the inquiry into whether a warrantless search is ‘authorized by law’ might look to:
a. exigent circumstances [Code 487.11, 529.3, etc.]
b. other authority under statute or at common law;5 or
c. valid consent?6
If there was no other authority for the search, or if the search does not conform to any other
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 then asks 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!)
5
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?
6
If consent was given, what was the scope of the consent? Was it informed and unequivocal consent?
5