Police Searches and Criminal Defence in Canadian Law: Part 3

In previous articles, we've seen how the recent ruling by Supreme Court on cell phone searches by law enforcement is part of a long line of legal thinking regarding government searches and personal privacy that stretches back at least as far as the Magna Carta and which became more prominent during the Elizabethan Era. When the eighteenth century rolled around, the Enlightenment set about revolutionizing political thought and things like law enforcement, citizens, privacy, and defence against government intrusion took on a form that modern residents of Calgary might recognize.

This doesn't mean that laws limiting government searches and seizures were explicitly spelled out three hundred years ago, or that instances of law enforcement overreach and breaches of the public trust were necessarily effective as a means of defence in criminal cases. Certainly there is no language as clear as Section 8 of the Canadian Charter of Rights and Freedoms: "Everyone has the right to be secure against unreasonable search or seizure." Yet a look at the preeminent English legal text from the 18th century shows that the right to privacy and the freedom one has when it comes to their person and personal property were already well-cemented as features of law, even if their impact on criminal defence cases were not fully realized.

Blackstone and a Citizen's Right to Privacy and Personal Liberty

Judge and legal scholar Sir William Blackstone published one of the first comprehensive texts outlining English Common Law with his 1765-69 Commentaries on the Laws of England. While he does not address the issue of obtaining search warrants or other official approval to search through a person's private belongings for evidence pertaining to a crime, several times in his opening chapter and throughout the four-volume text he stresses the important role that privacy and personal liberty concerning private property play in maintaining a just and free society:

"Let a man therefore be ever so abandoned in his principles, or vicious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of reach of human laws" (Book I, Chapter i, par. 8).

"Every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny" (I, i, par. 11).

"The third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land...it is enacted, that no man's lands of goods shall be seized into the king's hands, against the great charter [Magna Carta], and the law of the land" (I, i, par. 35).

Bolstered by the political liberalism of John Locke and the growing separation of the North American colonies from British rule, Blackstone recognized both a common thread in English law and the natural right of all men (and later, women) to the privacy of their belongings, and that the government could not intrude upon that privacy without showing just cause.

Criminal Searches and Legal Defence

Though the courts of Blackstone's day had many similarities to the modern court system at work in Calgary, criminal investigations and criminal defence law were nowhere near as sophisticated as they are today. Despite Blackstone's insistence on natural rights, most people in the eighteenth likely could not have used an illegal search as part of their defence against criminal charges—but times have changed. If you believe an illegal or warrantless search has landed you in trouble, you can contact Calgary criminal defence lawyer Susan Karpa for a free initial consultation.

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