Unreasonable Search and Seizure

Understanding Your Right to Privacy

In the realm of Canadian law, one fundamental right stands as a pillar of protection for individuals – Section 8 of the Canadian Charter of Rights and Freedoms. This section unequivocally asserts that everyone has the right to be secure against unreasonable search and seizure.

Section 8: What It Means for You

In essence, Section 8 establishes a critical standard: law enforcement cannot conduct a search without having reasonable and  probable grounds to do so. This foundational rule serves as a cornerstone, yet, like any legal principle, it comes with its nuances.   There are also exceptions to the general rule which won’t be covered in detail here, such as exigent circumstances,  hot pursuit, or inventory searches upon arrest.  

The Legalities When Police Enter A Home

Let’s delve into a scenario involving a residence. For police to enter a home, they must possess reasonable and probable grounds to enter the home and conduct a search.   The reasonable and probable grounds are  often outlined in a search warrant. Here’s the catch – if a justice of the peace finds the grounds insufficient, they should rightfully deny the search warrant.

Challenging Mistakes: Section 8 Charter Application

What if a mistake occurs, and the grounds are deemed lacking? 

This is where a Section 8 Charter application comes into play to attempt to exclude the evidence from being led by the Crown at trial. Defence lawyers can leverage this application to challenge and exclude evidence,  such as drugs which were found in a household, arguing that  there were insufficient grounds for a search warrant.  

• Example Scenario: An unreliable informant’s tip forms the sole basis for the search. In such cases, a Section 8 Charter application can also contest the validity of the search and seizure and potentially lead to the exclusion of any evidence found under section 24(2) of the Charter.  

Beyond Households

Section 8 resonates across various contexts, from border searches, where the threshold is a lower level of only reasonable suspicion, to encounters on the street. In each scenario, police require grounds to conduct a search.   

• Illustrative Scenario: Police encounters on the street also demand sufficient grounds; random searches without cause are unlawful.

Empowering Your Defence: The Role of Disclosure

A vigilant defence is key. Upon receiving disclosure, defence lawyers meticulously assess the specific situation. Were there sufficient grounds? Can the search warrant be challenged? Winning your case often hinges on these critical evaluations and whether there is a viable defence. 

Your Rights, Your Defence

The essence of Section 8 is profound – the police cannot intrude into your home without proper grounds. Should this boundary be breached, the legal system empowers you to challenge it. This right is a cornerstone of our democratic society.

• Foundational Right: Section 8 safeguards your home and your person, ensuring the sanctity of your personal space.

The Importance of Legal Representation

If you find yourself facing charges based on evidence obtained through a search, securing a competent criminal lawyer becomes paramount. A skilled and experienced  lawyer  can review the grounds, assess your defence options, and potentially win your case under sections 8 and 24 of  Canadian Charter of Rights and Freedoms..

Securing Your Home, Defending Your Rights

In the complex landscape of criminal law, Section 8 stands as a guardian of your privacy. Understanding its implications and exercising your rights with the guidance of legal experts ensures that the ideals of security and justice prevail in our great democratic country.

Explore Your Defence Options with a Free Consultation

If you’re facing legal challenges or have concerns about your rights, we offer a free consultation. Contact us here to discuss your case and explore your defence options. Your rights matter, and we’re here to protect them.

Video Transcription:

I want to talk to you today about one of our fundamental rights under the Canadian Charter of Rights and Freedom and this is section 8. Everyone has the right to be secure against unreasonable search and seizure. What does that mean? Well, it means this simply, the police cannot search you unless they have reasonable probable grounds in most situations. That’s the general rule. There’s a lot of deviations from that rule. So what does reasonable probable grounds mean? Essentially, for example, let’s talk about a house. To come into a house by the way, the police need reasonable probable grounds outlined in a search warrant to enter a home. If they don’t, for example, they go to a justice of peace and the justice of peace reviews the affidavit of the officer, setting out their grounds and the justice of peace might say, “There’s not a sufficient grounds here, I’m not gonna issue a search warrant”. That if the justice of peace understands the law well and understands that that affidavit doesn’t provide grounds, they should not issue a search warrant. Now, let’s say that the justice of peace makes a mistake and there’s not sufficient grounds, those grounds can be attacked in court. It’s called a section 8 charter application and what you’d be doing, defense lawyers say there’s drugs found on the household, you’d be bringing a charter application under section 8 to exclude that evidence, arguing: “look, there were not sufficient grounds at home”. The only thing the police had was an informant’s tip, for example, that was not verified for anything, by anything. It was an unreliable informant, that’s just one example. There’s so many examples of this in every context, border searches, by the way the level of reasonable grounds is more reasonable suspicion by the board, it’s much more longer than level task. But let’s say you come up with someone on the street, the police just can’t search the person. They need grounds to search that person. There’s a lot of cases under this topic. A good defense can review your particular situation once she or he receives disclosure and figure out were there sufficient grounds, can we attack that search warrant, can we attack the search, can we win your case and when you think about it there’s so many situations in community law or contrabands found on someone or drugs were found on someone when we enter a household. This is such an important fundamental right. The police just can’t break into your homes without proper grounds and if they do, you are entitled to attack that in court as not being reasonable. We enjoy that great right in our great democratic country. So if you are facing this situation, you’ve been charged and something has been found on you, make sure that you hire or retain a competent criminal lawyer to review those grounds to see if you have a defense and can win your case under the Canadian Charter of Rights and Freedom to exclude the evidence and that exclusion section is Section 24.2. That’s one of our most important rights in a Canadian society, frankly, is the right to be secure in our own homes and to be secure out in the streets.