News Articles

SEARCH AND SEIZURE

We all know that when we see flashing red and blue lights in our rear view mirror it's a signal to pull over.  We also expect that the officer will approach the car and make the standard request to see driver's license and registration, but does that officer have the right to search the car or seize anything in it?  We are frequently reminded by television and movies that the police must obtain a warrant if they wish to conduct a search, and many people mistakenly believe that the absence of a warrant shields them from the law and police interference.  

In Canada, the police powers to search and seize are largely given by statute, but the common law also provides some additional powers in specific limited situations.  Regardless of their origin, these powers are subject to the constitutional protection found in s. 8 of the Charter of Rights and Freedoms, which states, "Everyone has the right to be secure against unreasonable search or seizure."  The Charter attempts to provide a balance between the interests of the individual, his privacy and his possessions, which should not be invaded except for the most compelling reasons; and the interests of society at large in detecting criminals and repressing crime.

Section 487.11 of the Criminal Code gives police the power to search and seize without a warrant, where it would be impractical under the circumstances to obtain one.  The criteria required to obtain a warrant must be present however, and the police must be acting in the course of their duties.  Section 489(2) of the Criminal Code also grants the police the power to seize items when they have reasonable grounds to believe they have been obtained by, or used in the commission of an offence, or that will provide evidence in relation to an offence.

Some other federal statutes specifically give the power to search and seize in the absence of a warrant.  For example, the Controlled Drugs and Substances Act, much like the Criminal Code, allows for warrantless search of persons and places, and seizure in circumstances where conditions exist to obtain a warrant, but doing so would be impractical.  When evidence is in immediate danger of being destroyed, it would be impractical to obtain a warrant.  Therefore, seizure is permitted as it would be contrary to the fundamental principles of our criminal law to allow wrongdoers to destroy evidence, when it can be prevented. 

There are several types of common law search and seizure powers that are recognized by Canadian courts.  Firstly, the power to search may be incident to arrest.  This gives the police the power to search a person who has been lawfully arrested, however, more invasive types of searches are regulated by statute (i.e.: blood samples).  Secondly, the power to search is activated when consent is given.  The law requires that in order for consent to be validly obtained, it must be "real" and "voluntary."  Legally speaking, this means that the person being searched must have a sufficient awareness of the right and the potential consequences of giving up that right.  Finally, the common law also provides a seizure power, which allows police, who are lawfully engaged in the execution of their duties, to seize evidence that is in plain view. 

So what does this mean for our friend who has been pulled over for speeding?  The officer could of course search the car with the driver's consent, or if the driver was placed under arrest.  If the officer could smell alcohol in the car, he would have reasonable grounds to believe that the driver was intoxicated, so he may be able to conduct a search for open alcohol.  Here it would be impractical to obtain a warrant, because any open alcohol would likely be disposed of in the meantime.  If drugs, weapons or open liquor were in plain view, the officer would also be entitled to seize those items without a warrant. 

By Gina Toni
September 29, 2004