All Canadians have the right to protection against unreasonable search or seizure of their property right which is guaranteed under section 8 of the Canadian Charter of Rights and Freedoms. This means that we are protected by law, from having our privacy violated or our property taken without a search warrant. Law enforcement needs reasonable and probable grounds that a crime has been committed in order to justify a search.
If evidence is discovered in an unlawful search or seizure, a defence lawyer has grounds to have the evidence against you excluded under sections 8 and 24(2) of the Charter. This is true whether or not the property that was found by police is a gun, alcohol, drugs or any other evidence that could be held against you. In a recent Kitchener trial, the judge reprimanded local police and ruled that various ammunition, drugs and other evidence found in a barn, where a Hell’s Angels member lived, is inadmissible because police failed to obtain a search warrant before they entered the defendant’s property.
Ontario courts generally find police misconduct to be a threat to the justice system, but taking shortcuts to prove their case is more common that you might think. In 2013, eight accused persons in five separate cases were freed because a few police officers in Peel Region unlawfully searched the accused persons’ vehicles in each instance. In one case, police approached a person in a Brick furniture store parking lot; they did not tell him why he was being detained or that he had the right to call a lawyer; and when they discovered incriminating evidence in his car, they placed him under arrest but did not inform the man of the reason for the arrest. Regardless of two prior convictions for the accused, the judge ordered that the case against him be dismissed because there were no established prior grounds for his arrest and without a warrant, the arrest was unlawful.
The right to be protected from unlawful search and seizure applies as much to anyone who was convicted of a prior offence as it does to someone without a criminal record. In 2009, the Supreme Court of Canada dismissed charges against a defendant because the court concluded that the arresting officer flagrantly disregarded the man’s rights against arbitrary detention and also against unlawful search and seizure. The arrest in this case happened after OPP pulled a man over because his SUV was missing a front licence plate, which they later realized was lawful because the car was licenced in Alberta where only a rear plate is required. In pulling the man over, it was discovered that he was driving with a suspended licence, for which he was subsequently arrested. The OPP officer then proceeded to search the man’s car, allegedly to find the missing licence. 35 kilograms of cocaine were found in the vehicle, valued at $4 Million. A lower Ontario court sentenced the man to five years in jail, but the Supreme Court of Canada held that finding evidence of potential wrongdoing cannot be an excuse for squashing a person’s rights under the Charter.
If you are pulled over and questioned by police, you have the right to be told why they are interrogating you. Without a warrant, police do not have the authority to search you, your property or your residence, except under unusual circumstances, such as if there is reason to believe someone is being hurt or assaulted in your home. These are called “exigent circumstances.” There are other exceptions as well such as a search incident upon arrest for safety reasons. If police request a search of your property or even if they have already done so, call an experienced criminal lawyer to find out about your legal rights and to ensure that these rights are being upheld.