Police Searches and Criminal Defence in Canadian Law: Part 4

English Common Law has recognized a certain right to privacy and freedom from government intrusion as important features of a just society since at least the early 13th century, yet these principles didn't begin to take their modern forms with law enforcement officers, courts, and the criminal justice system until the era of the New World discovery and colonization. The freedom from unreasonable searches and seizures enjoyed by those in present-day Calgary, and the ability to cite unreasonable and unlawful searches as effective parts of a criminal defence, took time to develop as the British Empire became more widespread and ultimately more democratic.

Some of the change in the legality of searches and securing the rights of suspected criminals (and ordinary citizens) in Calgary can actually be attributed to Canada's neighbor to the south. Both the United States and Canada have their roots in England and English law, of course, and the similarity of many of the laws and legal customs in these two nations is no coincidence. In the late 18th century, British colonies throughout North America were bristling under English rule, to varying degrees, and this led not only to the American Revolution but also to the codification and declaration of rights against unlawful searches in more strident and universal terms. While Calgarians all fall under the protection of Section 8 of the 1982-enacted Canadian Charter of Rights and Freedoms, the United States has had a constitutional ban on unreasonable searches and seizures since 1791.

How the American Revolution Influenced Canadian Rights and Criminal Law

The reasons behind the American Revolution—and the decision by most British colonists in Canada to remain supportive of England or entirely neutral—are complex and controversial. The reach of an empire across an ocean to meddle with everyday affairs was part of the problem, however, and government intrusiveness in both criminal and non-criminal matters was frowned upon by many Canadians, as well. As frustration grew to rebellion for the thirteen colonies in the South, preventing government searches of homes, businesses, and other property became a significant problem.

King George IV, his parliament, and his governors were seen as abusing governmental power in numerous ways, and there was little or no defence in the law available to colonists who experienced these intrusions. When the revolution came to a close and the matter of establishing a more democratic rule began to press upon the thirteen colonies' leadership, guaranteeing citizens' freedom from unreasonable searches and seizures in no uncertain language was a fundamental ideal.

"Unreasonable" continues to be a word contended with by both US and Canadian courts, including in some cases starting right here in Calgary. Yet the basic principle that all people have the right to privacy, whether or not law enforcement officers suspect them of criminal activity, was largely solidified throughout the British-dominated world in the time surrounding the American Revolution.

Your Right to Privacy in a Calgary Criminal Defence Case

Freedom from unreasonable searches and seizures is now recognized as an essential part of a liberal society and a functioning democracy. You have certain rights to privacy even if you've been formally charged with a crime by Calgary law enforcement, and abuse of those rights can form a part of your criminal defence. If you are facing criminal charges and have questions or concerns regarding law enforcement searches, contact Susan Karpa immediately for a free consultation.

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