Police Searches and Criminal Defence in Canadian Law: Part 5

Previous articles in this series have detailed the development of Canada's law against unreasonable searches and seizures from the time of the Magna Carta to the Elizabethan Age and the dawn of the Modern Era through to the American Revolution. These major milestones, while important, still didn't bring Canadian law to its modern stance on the matter, nor did they anticipate the significant technological advances of the coming centuries that would be cause for entirely new appraisals of what constituted an "unreasonable search" by law enforcement as they conducted criminal investigations, and what defence private citizens had when it came to these intrusions.

Telegraphs to Cell Phones: Defining the Legal Reach of Criminal Searches

The latter half of the nineteenth century saw the invention of the telegraph, the first medium for transmitting communications electronically across large distances. Prior to this invention, messages could only be sent with a physical copy, carried by a messenger, and that messenger's right to privacy and freedom from unreasonable search and seizure was already largely secured due to previous rulings in English courts. This meant that communication could take place with a reasonable assurance of privacy, and that the illegal seizure of a piece of communication would often provide an adequate defence against any resulting criminal charges.

The introduction of the telegraph changed things dramatically, not just in a technological sense but in a legal sense as well. Now communication was no longer tied to a specific place or a specific person's body, but was transmitted through wires across wide-open spaces, and this raised the question: did a person's right to privacy and freedom from government intrusion extend to their communications in these forms and spaces, even if those communications facilitated criminal activity? Simply put, was "wiretapping" by the government legal, did it require a warrant in order to be a "reasonable search," or did a warrant need to be served to one or both of the communicators?

These questions were wrestled with in numerous criminal defence cases and other legal proceedings for decades, becoming even more pointed and complex with the invention of the telephone (less so with radio and television due to the fact that these send communications through the air itself, without any wires—literally anyone with an antennae and a receiver could listen in, so the right to privacy was already considered waived by the communicators). By the middle of the twentieth century the understanding of what could reasonably be searched without a warrant was fairly well established as a matter of judicial precedent, however laws protecting citizens and accused criminals were still not written in black and white.

Canadian's Right to Privacy is Still A Controversial Part of Defence Law

In 1982, the adoption of the Canadian Charter of RIghts and Freedoms secured all persons in Canada—ordinary private citizens and suspected criminals alike—the same defence against unreasonable searches and seizures, under Section 8. The law's direct prohibitions are still a matter of debate, however, and continue to evolve as new cases and new technologies develop.

< Return to Blog