Police Searches and Criminal Defence in Canadian Law: Part 6

This article deals with cases heard by the Supreme Court of Canada that have helped shaped rules and laws regarding law enforcement searches and seizures during criminal investigations and arrests. For a full (yet brief) look at the history of Canada's laws against unreasonable search and seizure, from the Magna Carta to the adoption of the Canadian Charter of Rights and Freedoms in 1982, please see the previous installments of this article series: [Part 1], [Part 2], [Part 3], [Part 4], [Part 5].

It's been more than three decades since the freedom from unreasonable searches and seizures was first explicitly enshrined in Canada's highest body of law, yet the rules of the Charter's Section 8 prohibition against unwarranted government intrusion continue to develop in light of new circumstances and new technologies. A few landmark rulings by the Supreme Court of Canada stand out in their impact on these laws and the rights and freedoms enjoyed by citizens of Calgary and the nation as a whole.

The Law's View on Cars, Cameras, and Other Criminal Investigation Tools

Recording equipment changed the nature of searches and the right to privacy, from wiretapping in the era of the telegraph onward. In R. v Duarte [1990], the Court ruled that recordings made of communications where someone had a reasonable expectation of privacy—whether or not they were engaged in criminal activity—were not permissible as evidence without a warrant obtained prior to the recording. In this case, a recording made by an undercover law enforcement agent was deemed inadmissible, giving the accused an effective defence under Section 8 of the charter.

On the other hand, the Court's decision in R. v. Belnavis [1997] determined that passengers in a car do not have a reasonable expectation to privacy. Though the owner and/or person in control of a vehicle might enjoy protections against a warrantless search, this case determined that other non-controlling occupants might be susceptible to a search due simply to reasonable law enforcement suspicion of criminal activity. An attempted defence asserting a violation of Section 8 was, in this case, unsuccessful.

Interestingly, though it was determined that the backseat of a private vehicle did not guarantee an occupant an expectation of privacy, the Court determined in R. v. Buhay [2003] that a locker in public bus station did, in fact, give the locker's user a right to remain free from searches and seizures without a legally obtained warrant. Even though the locker in this case was under the control of station personnel, the evidence found by police in that locker was deemed inadmissible and the accused was successfully defended against criminal charges due to the illegal search.

Technological Challenges to Criminal Defence and Criminal Investigations

These are just a few of the cases that have come before the Supreme Court of Canada to help determine the exact lay of the land in regards to the Section 8 freedoms from unreasonable searches and seizures. In the next and final installment of this article, we'll see how emerging technologies continue to reshape the law and present new challenges to law enforcement and criminal defence lawyers in Calgary and Canada at large.

If you feel you or a family member is facing criminal charges as the result of an illegal or warrantless search during a criminal investigation, please contact Calgary criminal defence lawyer Susan Karpa today for a free consultation.

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