Police Searches and Criminal Defence in Canadian Law: Part 2

This is Part 2 in an article series discussing the development and current state of your rights under Canadian law to remain free from unreasonable searches and property seizures. For Part 1, click here.

Last week, we saw how Section 8 of the Canadian Charter of Rights and Freedoms, which protects all citizens and residents of Calgary and Canada at large from unreasonable searches and seizures, has its roots in English Common Law, even extending as far back as the Magna Carta and the limitations it placed the Crown's power. Though the criminal defence system and public life was vastly different in the medieval period, this early recognition of the right to privacy and freedom from government intrusion remains an important part of law enforcement rules and can offer you protection during a criminal defence case and/or investigation.

Defence Against Government Intrusion in the Elizabethan Era

For three and a half centuries or so, a few lines in the Magna Carta were all the protection the English people had against unwarranted government intrusion, and the actual defence this provided varied greatly over the years and across socioeconomic classes. Tudor England was a different world than Medieval times, though, and the reasons used by the Crown to justify searching and seizing properties multiplied. The end of the fifteenth century was a time when political dissent and religious disagreement constituted criminal acts, and the frequency and destructiveness of government searches and seizures increased dramatically.

By the Elizabethan Era, when espionage and political intrigue were as commonplace as they are today, many English homeowners began to insist that their houses were like castles—that the law should protect private residences from intrusion and government searches the way castle walls and fortifications provided physical protection against unwanted visitors. As the noblemen and upper classes below the monarchy grew more powerful, their voices were more difficult to ignore. It was in this period that Common Law—laws developed by judicial rulings and common practice rather than written and voted upon by legislators—began to develop a concrete recognition that there were certain areas that should be off-limits from government searches and seizures without real reason to suspect criminality.

It would still be some time before the true limitation on government searches and seizures as we know it today would be enshrined in law, and longer still before unreasonable and unlawful searches could be used as a means of defence in a criminal case before the courts. This was also the time that the English colonies in North America were being established, however, and the fact that laws restricting government searches developed during the same period is not coincidental—as discussed in Part 3.

Criminal Searches and an Effective Calgary Defence Lawyer

Calgary was still a far-off dream in the Elizabethan Era and the early days of Canada, but its citizens continue to benefit from the laws and law enforcement practices developed centuries ago. While most searches conducted by the Calgary Police and other local officers are lawful, an unreasonable or unwarranted search could prove a pivotal point in your criminal defence case. For a free consultation with an experienced Calgary criminal defence lawyer, contact Susan Karpa today.

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