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5.4 Seizure in Criminal Law

Introduction to Search and Seizure in Criminal Law

  • Overview of key legal concepts associated with search and seizure in criminal law.

Section 8 of the Charter

  • Definition: Section 8 of the Canadian Charter of Rights and Freedoms states, "Everyone has the right to be secure against unreasonable search or seizure."

  • Emphasizes the protection of individual privacy against arbitrary or unjustified state interference.

What Constitutes a Search or Seizure?

  • Search: Refers to the examination of a person’s property or person by law enforcement authorities to find evidence of a crime.

  • Seizure: Refers to the taking of evidence or property by law enforcement authorities during or after a search.

Understanding Unreasonable Search or Seizure

  • A search or seizure is deemed unreasonable when it violates the reasonable expectation of privacy of an individual.

  • Key Case: Hunter et al v Southam Inc., [1984] 2 SCR 145 - established the principle that individuals must have a reasonable expectation of privacy.

Reasonable Expectation of Privacy

  • Criteria: The concept of reasonable expectation of privacy involves both subjective (personal belief of privacy) and objective (legal standards) components.

  • Key Cases:

    • R v Wong, [1990] 3 SCR 36: Discusses privacy expectations in a hotel context.

    • R v Tessling, [2004] 3 SCR 432: Examines distinctions in privacy regarding garbage versus concerns over domestic surveillance.

Examination of Privacy in Decision Making

  • Discussion on the distinction between:

    • When individuals put out garbage (no expectation of privacy).

    • When individuals fear their telephone is bugged (subjective expectation of privacy remains).

Legal Framework and Justifications for Searches

Warrant Requirement

  • Importance: Prior authorization through a warrant ensures an assessment of the conflicting interests between the state and the individual.

  • Standard of Probable Grounds: The necessity of having credible evidence that outweighs privacy concerns before conducting a search.

Balancing State Interest and Individual Privacy

  • Hunter et al v Southam Inc. explained that the state's interest in crime prevention can only override individual rights when there is a credible basis for suspicion leading to probable grounds.

Search and Seizure Powers Overview

  • The legal grounds for searches can be categorized into:

    • Statutory Powers:

    • Criminal Code: Sections 487, 487.11 outline conditions and protocols for conducting searches.

    • Controlled Drugs and Substances Act (CDSA): Section 11 discusses search powers specifically pertaining to drug-related offenses.

    • Common Law Powers:

    • Search Incident to Arrest: Law enforcement may search an individual when they are lawfully arrested.

    • Safety Search: Searches conducted for the safety of officers or others in the vicinity.

    • Canine Sniff Search: Utilizing trained police dogs for detecting contraband as a search method.

Conclusion

  • The legal landscape of search and seizure is dynamic, requiring continual judicial interpretation and adaptation to evolving privacy norms and societal expectations.

  • Reminder: Always consider the practical implications and ethical dimensions of privacy in the context of law enforcement actions.