B. What Is a “Search”?

Author:Steve Coughlan
Profession:Professor of Law. Dalhousie University

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The Court has adopted a purposive approach to defining "search" that is based on the goal of section 8 of the Charter.14The intent of that section, the Court has held, is to protect individuals from unjustified state intrusions upon their privacy. Accordingly, a state investigative technique is or is not a search depending on whether it infringes on a person’s reasonable expectation of privacy.15Whether a person has a reasonable expectation of privacy is itself a complex issue which will be discussed at greater length below.16By this standard, however, frisking suspects, having them turn out their pockets, and so on are searches, but so is the passive technique of conducting a "bedpan vigil."17Both the physical act of installing a tracking device in a car and the subsequent electronic monitoring of that car’s movements constitute searches.18An inspection of a workplace is a search.19A wiretap is a search,20as is video surveillance and all existing or future technology allowing

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the state to intrude electronically on privacy.21Executing a search warrant on the interior of a building is, of course, a search, but so is inspecting the perimeter of the building.22Indeed, since it intrudes on a person’s reasonable expectation of privacy, it is also a search when the police knock on a door to see if they will be able to smell marijuana when it is opened.23An investigative technique will not count as a search only where it does not intrude on a reasonable expectation of privacy. For example, the Court has held that a request for various documents by Canadian officials to a foreign government does not intrude on a person’s reasonable expectation of privacy: the foreign government’s actions might, but the request from the Canadian government does not. Accordingly, that request is not a search.24The Court has taken the same approach to deciding whether a "seizure" has occurred. The issue is not whether some measure of compulsion or deprivation was involved, but whether the accused’s reasonable expectation of privacy was infringed. Thus, for example, making copies of a company’s documents constitutes a seizure.25Further, even if a doctor willingly hands over a blood sample to the police, this will still be considered a seizure if the doctor was only authorized to have the blood sample for limited purposes.26Nonetheless, there is a distinction to be drawn between evidence that is "seized" and evidence that is merely "found." Thus, if the police take a sample of blood from a car seat at the scene of an accident such action will not infringe the accused’s reasonable expectation of privacy and will not be a seizure.27

For the same reason, no seizure is involved in gathering evidence when it has been abandoned by an...

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