Police Searches and Criminal Defence in Canadian Law: Part 1

A recent ruling by the Supreme Court has created a lot of buzz in the law enforcement and criminal defence worlds, and with good reason. The Court's decision has far-reaching implications for what constitutes a reasonable search under Section 8 of the Canadian Charter of Rights and Freedoms, allowing police throughout Canada—including the Calgary Police and all area RCMP divisions—to search criminal suspects' cell phones immediately upon arrest, without a warrant or any other approval from a judge.

There are certain guidelines that law enforcement must follow when conducting these cell phone searches, and they cannot simply stop anyone and look for anything potentially incriminating on their phones, however this still represents a major evolution in what is deemed a "reasonable search" during criminal investigations. The precise practical effects this will have on current and future criminal defence cases remains to be seen, and the possibilities are discussed in [another article] ("Cell Phone Evidence…" article URL), but one thing is clear: this is just one more step in a long line of evolving Canadian attitudes towards privacy, law enforcement, and criminal investigations.

Canadian Criminal Defence Rests on English Common Law

It isn't entirely accurate to say that all rules for today's Canadian law enforcement agencies or the laws and procedures depended upon by criminal defence lawyers and their clients are based on English Common Law—the laws that evolved over time in England from practice and judicial decisions. Many of the laws and legal structures that make up the modern criminal justice system and the Canadian legal system as a whole have their roots in Common Law, however, including the freedom from unreasonable searches and seizures. Now enshrined in the Charter, legal scholars have asserted that a recognized restriction on government searches has been around for eight hundred years, ever since the Magna Carta:

"No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice."

While this speaks more directly to a freedom from unlawful taking of property—"unreasonable seizure" in the modern criminal justice parlance—the broad language has been interpreted as a limitation on government interference without due process of law during criminal investigations and proceedings. So police and law enforcement searches have been restricted by every person's right to their "liberties and free customs" for quite some time.

The Right to Privacy as a Means of Defence

Of course, the criminal justice system of the Middle Ages was nothing like the modern Canadian system of courts, Crown prosecutors and criminal defence lawyers, and criminal investigation was all but non-existent. Cell phones were beyond even the wildest imaginings, and the notion that clear rules were needed for searching private intellectual/digital property was equally far-fetched. Yet the recognized right to privacy and for citizens to remain free from government intrusion without just and legal cause was an important development, and would lead to an important area of criminal defence law.

If you or a family member is currently facing a criminal charge or accusation in the Calgary area and you have concerns about a search or seizure of your property that took place, contact experienced criminal defence lawyer Susan Karpa for a free consultation.

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