Police Searches and Criminal Defence in Canadian Law: Part 7

This is the final article in a series detailing the development and current state of all Canadians' right to remain free from unreasonable searches and seizures by the government, whether or not they are under suspicion of criminal activity. It deals specifically with three recent rulings by the Supreme Court of Canada regarding the use of technology by law enforcement and defining Canadians' right to privacy on their own electronic devices such as computers and cell phones; these decisions can inform the defence against criminal charges presented in Calgary courts.

Previous articles in the series can be read here:

[Part 1], [Part 2], [Part 3], [Part 4], [Part 5], [Part 6]

Technological Challenges to Criminal Defence and Law Enforcement Investigations

Emerging and developing technologies create new questions for law enforcement and for criminal defence lawyers and their clients. In R. v. Tessling [2004], a citizen's home was searched by law enforcement using an airplane quipped with a thermal imaging device—a camera that reads differences in heat rather than recording video images, and that works through visual barriers including a home's roof and walls. Evidence obtained using thermal imaging was used to obtain a criminal conviction against the accused in this case, and though the defence challenged this evidence as it was obtained without a warrant, the Supreme Court determined that there was no violation of the accused's privacy.

While the decision in R. v. Tessling opened the door for various searches by law enforcement using advanced technologies, the Court's ruling in R. v. Vu [2014] made it clear that law enforcement did not have free reign in technology-involved searches during criminal investigations. In this case, a warrant was obtained to search for specific evidence against a criminal suspect, but law enforcement searched the contents of the accused's computer without a specific warrant allowing them to do so. The Supreme Court of Canada held that although the search was unlawful, the evidence should not be excluded. This ruling made it clear that a specific warrant was required in order to legally search a computer found in someone's private home, even if a warrant to search that home had been obtained.

At first glance, the ruling in R. v. Fearon [2014]  might seem to contradict that of R. v. Vu: a search of a suspect's cell phone upon his arrest was conducted without a warrant, and the Court deemed the evidence admissible in a criminal trial and upheld the conviction that had been obtained. This case made headlines here in Calgary and across the nation as it made anyone detained by the police potentially subject to such a search, however the Court set strict guidelines for law enforcement regarding what constitutes a reasonable search, including requiring that the search be for highly specific evidence and mandating that law enforcement kept detailed notes regarding the search. These restrictions can prove useful in criminal defence trials.

A Calgary Criminal Defence Lawyer Can Help with Unreasonable Searches

Most searches conducted by the Calgary Police and other law enforcement agents are lawful, however unreasonable searches and seizures can occur. When they do, a Calgary criminal defence lawyer can provide insight and expertise in addressing the problems these unwarranted searches can create.

If you believe you or a family member might have been the target of an illegal search or property seizure by law enforcement, [contact dedicated criminal defence lawyer Susan Karpa today] (https://susankarpa.com/contact) for a free consultation.

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