La loi vos droits

Offenders and Accused Persons

Search and Seizure by the Police

Police have long held certain powers that help them carry out criminal investigations. Some of these powers allow police officers to search premises and people. Others allow them to seize objects that can help prove that an offence has been committed.

Since searches interfere with a person's privacy, the Criminal Code and the Canadian Charter of Rights and Freedoms include certain protections against unjustified state intrusion into an individual's private life.

Searches and seizures must generally be authorized by a judge ahead of time, and they must be done in a non-abusive way. However, in some cases, it is possible for the police to conduct a search or seizure without the permission of a judge.

In this Infosheet, Éducaloi explains the ins and outs of searches, search warrants, and your constitutional right to be secure against unreasonable searches and seizures.

What is search and seizure?

A search is when the police look for evidence of an offence in a place or on a person. For example, the police might search a person, her bag, her clothing or her vehicle. They could also search her house, office or garage. Seizure is the act of taking and keeping the objects discovered during a search.

What is a search warrant?

The warrant is the written authorization of a judge that permits the police to conduct a search or other method of investigation. In Quebec, warrants are issued by judges or justices of the peace, depending on the circumstances. Police officers who wish to obtain a warrant must go meet a judge and convince her that they have reasonable grounds to believe that objects involved in an offence may be found in the place they want to search. The police cannot simply search anywhere and anyone without a valid reason. A judge who issues a warrant can decide how it will be carried out: the time, place and manner in which certain police are authorized to act.

What are the main types of warrants?

Several types of search warrants exist. Some allow the search of premises, while others involve the search of people. The warrant to search a place or building is the most common. It allows the seizure of evidence of an offence. It also permits the police to search for objects that might reveal where a suspect is hiding. There are several warrants that are issued for specific offences, relating to:

• Firearms;
  
• Obscene material;
  
• Gambling materials;
  
• Hate propaganda;
  
• Precious metals;
  
• Proceeds of crime (objects obtained by committing a crime);
  
• Offence-related property (property used in the commission of an offence);
  
• Electronic data

There is also a warrant that deals with telecommunication systems. It allows police to obtain the records of a telephone company to know the origin or destination of certain calls. This warrant is useful in cases of telephone harassment. Still other kinds of warrants permit video surveillance and electronic listening, by taping phone conversations or using microphones (“bugs”).

Finally, a general warrant allows the use of investigation techniques or acts similar to a search. This type of warrant is often used when collecting information in the area around a place. The observations made are then used to obtain yet another warrant — this time to search the inside of the premises.

For example, say the police get an anonymous tip that there is a marijuana-growing operation inside a house. This tip is not enough to justify searching inside the house. On the other hand, it may be enough to obtain a general warrant. The general warrant will allow the police to approach the house, to look in the windows and confirm that the smell of marijuana is present. They could also find plant matter in the garbage (leaves, stems, etc.). With this information, the police could then convince a judge to issue a warrant to search inside the house.

How do the police obtain a search warrant?

To obtain a warrant, the police officers must prepare a document called an information. In the information, the police swear that their request is based on true facts. The information must list the reasons that justify issuing the warrant, the objects the police seek, and the relationship between these objects and the offence committed. With this information, they meet privately with a judge in his office to ask him to issue a warrant. Most warrants can be issued by a justice of the peace, a judge who has restricted powers. Some other warrants—which are more intrusive—must be issued by a judge of the Court of Québec or a judge from the Superior Court.

If the facts in the information convince the judge that there are reasonable grounds to believe that an offence has been committed and that evidence of the offence can be found at the place named in the warrant, the judge will issue it.

In special cases, though, the police can get a “telewarrant” — a search warrant obtained over the phone, fax or any other means of telecommunication.

Do the police always need a search warrant?

In principle, yes: the police must always get a warrant before conducting a search. A search without a warrant is presumed to be illegal.

However, some exceptions exist. In emergency situations, when there is no time to obtain a warrant or telewarrant, the police may search without it. For example, let’s say that the police get a tip that a bomb will explode in a few minutes, in a specified place. The police arrive right away to search for the bomb and diffuse it before it explodes. To be legal, a search without a warrant must be justified by the existence of reasonable grounds in the same way as when a warrant is issued by a judge.

In drug-related cases, a particular law allows the police to search without a warrant when the urgency of the situation makes getting a warrant impossible.

In all cases, the police are allowed to search a place or person with the consent of that person. For example, the police might be investigating a murder. They can arrive at the home of the suspect’s spouse and ask for her permission to search her room.

Can the police search a person who is under arrest?

Yes. During an arrest, the police can search the person arrested and the immediate surroundings, including the person’s car — without a warrant — to ensure their safety and to preserve evidence that could otherwise be lost or destroyed. In practice, the police systematically search every person they arrest. This search must be brief (pockets, bags, etc.). A warrant is needed for a more intrusive search (body cavity, blood samples, etc.).

If the police happen to see illegal objects while performing their regular duties, do they need a warrant to seize them?

No. The police do not need a warrant to seize items that are in plain sight. Suppose the police go to a residence to check out a noise complaint. They knock at the door and the occupant opens it. From the doorway, one of the officers is able to see a large bag of cocaine on the kitchen table. He can seize the bag without a warrant.

Are there other cases where the police can search without a warrant?

The law allows certain searches without a warrant. The best example is the power of police to force an impaired driver to give a breath sample to measure the level of alcohol in his blood. No warrant is needed in this case, but the police must have reasonable grounds to believe that the person is driving the car while impaired by alcohol.

What happens during a search procedure?

The Criminal Code stipulates that a search must be carried out between 6 a.m. and 9 p.m. (some exceptions exist).

When executing a search procedure, the police must:

• announce and identify themselves;
  
• show the search warrant to the occupant of the premises.

In some situations, the police can enter the premises unannounced. This usually happens when there is a possibility that evidence may be destroyed before the police can enter the premises.

During the search, the police may seize the items listed in the warrant, as well as any other item they believe was obtained illegally or used to commit an offence.

How am I protected against unreasonable search and seizure?

The Canadian Charter of Rights and Freedoms states that every Canadian has the right to be secure against any unreasonable search or seizure. The protection of the Charter covers searches done by police officers (or other state agents) in places where a person has a reasonable expectation of privacy: her family residence, her car, her hotel room, her bag, her body, etc.

The power of search and seizure can obviously have a huge impact on a person’s right to privacy. The goal of the Charter protection is therefore to shield citizens against unjustified state intrusions in their private lives.

A search is abusive if it has any of the following characteristics:

• it wasn’t authorized by law;
  
• the law that authorizes it is unreasonable;
  
• the search was done in an unreasonable way.

If a person feels her right to protection against unreasonable search and seizure has been violated, it’s up to her to prove the violation. This person is usually the accused in a criminal trial.

When a search is done without a warrant, the court first assumes that the search was unreasonable. The prosecutor then has to prove that the search was actually reasonable, if he wants to be able to use the evidence collected during the search.

What happens when a search is found to be unreasonable?

If the accused shows that the search was unreasonable, she can ask the judge at her trial to exclude the evidence that was obtained through a violation of her rights. This means that a judge can forbid illegally-obtained evidence from being used in court.

The judge has to consider several things:

• Was the violation serious or intentional?
  
• Were the police acting in good faith?
  
• If the evidence were to be used, would it make the trial unjust or unfair? In general, the courts consider it unfair to allow evidence that would not have been discovered if it hadn’t been for the violation of the accused’s rights. Such evidence will usually be excluded (for example, blood samples, admissions, skin samples).
  
• Would the evidence have been discovered anyway?
  
• Did the police have other methods of investigation that they could have used?
  
• How serious was the crime?