A. Introduction

AuthorSteve Coughlan
ProfessionProfessor of Law. Dalhousie University

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Other than in powers of arrest, the ability of police to interfere with the liberty of individuals is most evident in powers of search and seizure. Powers to search exist within the Criminal Code and other statutes and are also found at common law. Powers to seize are typically associated with search powers, though there are occasional exceptions to that rule.

Rules relating to search and seizure reflect competing concerns, as do all rules of criminal procedure. The Supreme Court noted in Baron v. Canada that "the decision to grant or withhold the warrant requires the balancing of two interests: that of the individual to be free of intrusions of the state and that of the state to intrude on the privacy of the individual for the purpose of law enforcement."1Early pronouncements by the Court fully recognize that the interests of individuals are entrenched in section 8 of the Charter as a guarantee against unreasonable search and seizure. Thus, for example, in the leading case of Hunter v. Southam, the Court noted that the question was "whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in

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order to advance its goals, notably those of law enforcement."2That is,

priority was to be given to the individual interest.

More recently, this high respect for the individual right to be free from intrusions of the state has been less evident. Where, for many years, the Code contained a power to search places for evidence of crimes-a power with reasonably well-understood limits-a number of additional provisions have been added in the past few years. As will be discussed below, these provisions create warrants allowing police to obtain and bank DNA samples,3take impressions of feet, hands, teeth, and other parts of the body,4record telephone numbers,5track vehicles,6perform video surveillance,7and, indeed, to "use any device or investigative technique or procedure or do any thing" that would be an unreasonable search without a warrant.8Therefore, the state’s statutory ability to intrude on the individual has become much greater.9It appears that the Supreme Court might also have become less firm in their earlier view, expressed in Hunter, that one should prefer "the right of the individual to be free from state interference to the interests of the state in advancing its purposes through such interference."10In CANADIANOXY Chemicals Ltd., the Court held that

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The purpose of s. 487(1) is to allow the investigators to unearth and preserve as much relevant evidence as...

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