An Overview of Search and Seizure Law and Basic Principles

• Author: David Schermbrucker/Randy Schwartz/Mabel Lai/Nader Hasan
• Pages: 1-22

1

An Overview

of Search and

Seizure Law and

Basic Principles

1

I. Overview ................................................ 2

II. What Is a Search or Seizure? ................................ 2

III. Reasonable Expectation of Privacy ........................... 5

IV. State Action ............................................. 5

V. Requirements for a Reasonable Search or Seizure ............... 8

VI. Reasonable Grounds to Believe .............................. 9

VII. Reasonable Grounds to Suspect ............................. 10

VIII. Warrantless Searches ...................................... 12

A. Search Incident to Arrest ............................. 12

B. Plain View Seizure ................................... 14

C. Consent Searches ................................... 15

D. Exigent Circumstances ............................... 16

E. Abandonment ...................................... 16

IX. Manner of Search ......................................... 17

X. Reviewing the Search Warrant ............................... 19

XI. Charter Section 24(2)—Exclusion of Evidence .................. 20

XII. Portents for the Future of Search and Seizure Law in Canada:

Two Topics .............................................. 21

© [2021] Emond Montgomery Publications. All Rights Reserved.

2Search and Seizure

I. Overview

This chapter discusses the basic principles of the law of search and seizure in Canada

and is intended to introduce the chapters that follow. The authors hope that this text

will serve as a handbook or manual, rather than as an academic treatise. The focus

is therefore on a practical examination of how the law of search and seizure works in

real life—from the perspectives of the rights-holder; the police ocer conducting or

thinking about conducting a search or seizure; and the prosecutors, defence counsel,

and judges who may be reviewing police conduct after the fact.

Section 8 of the Charter of Rights and Freedoms1 is the touchstone of our analytical

framework. Section 8 protects the person against an unreasonable search or seizure.

The central concern is whether what the police intend to do—or more frequently in

our practices what police have already done—aects the admissibility of evidence

obtained by means of the search or seizure in a particular case. The litigation of sec-

tion 8 issues, logically, has been driven by criminal cases involving the admissibility of

evidence. This analysis ultimately also turns on the application of section 24(2) of the

Charter, which is triggered when a court finds a breach of the section8 right to be free

from an unreasonable search or seizure, and decides whether to exclude evidence

from the proceedings.

It must not be forgotten that constitutional rights, principles, and values are not

confined to the question of admissibility and the alleged predicate Charter breaches

that may trigger section 24(2) applications to exclude evidence. The Charter protec-

tion against unreasonable search or seizure is a stand-alone, substantive constitutional

right. Thus, for example, the proper question for a Crown counsel advising a police

ocer is not “If I conduct this investigative technique, will the evidence be admissible

in court?” Rather, the proper question is “Is this investigative technique compliant

with section 8 of the Charter?” While litigation is naturally reactive, legislative draft-

ing and training for police is proactive and should put that question front and centre.

II. What Is a Search or Seizure?

Dictionary definitions of search or seizure—“looking for” or “taking”—are simplis-

tic, yet it turns out that simplicity is everything. For Charter purposes:

• a search is the examination by state ocials of matters over which the person

enjoys a reasonable expectation of privacy, and

• a seizure is the taking away by state ocials of something over which the person

enjoys a reasonable expectation of privacy.

1 Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11

[the Charter].

© [2021] Emond Montgomery Publications. All Rights Reserved.